SERGO AGBARIAN v. FEDERAL REPUBLIC OF NIGERIA (2017)

In The Court of Appeal of Nigeria

On Friday, the 14th day of July, 2017

CA/L/909CB/2016(R)

Before Their Lordships

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria


Between

SERGO AGBARIAN Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

…………………….A…………………….BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Lead Ruling): This is an Application filed by way of a Motion on Notice on 14/6/2017 and brought pursuant to Order 4 Rule 1 and Order 6 Rule 1 of the Court of Appeal Rules 2016, praying this Court for the following reliefs:
1. AN ORDER granting leave to amend the Appellant’s brief dated 22/12/2016 and filed on 23/12/2016 as per the proposed amended Appellant’s brief of argument.
2. AN ORDER of this Court deeming the already filed and served Appellant’s amended brief of argument dated 9/6/2017 as having properly been filed and served.

The ground for the application is that the Appellant/Applicant requires the leave of this Court to amend the Appellant’s brief dated 22/12/2016.
The Application is supported by an Affidavit of 7 paragraphs deposed to by one Tiamiu Tunde, a litigation officer in the Appellant/Applicant’s Solicitors’ Chambers, wherein it was deposed inter alia: That the Appellant brief in this appeal was filed on 23/12/2016; That there is need according to the lead counsel Babajide Koku SAN to amend the Appellant’s brief of argument dated 22/12/2016 and filed on 23/12/2016 by deleting and/or removing part of the Appellant’s brief of argument to reflect the true intendment of the Appellant; That the amendment is necessary to bring all issues in this appeal properly before the Court; That the leave of the Court is required to enable the Appellant amend the Appellant’ s brief already filed in this appeal on 23/12/2016; That the amendment sought as set out in the proposed amended Appellant’s brief if granted will not be prejudicial to the Respondent. The Application together with the affidavit was duly served on the Respondent, who did not file counter affidavit or any other process in response thereto.
At the hearing of this application on 10/7/2017, Babajide Koku SAN, learned Senior Advocate for the Appellant/Applicant, with Chike Oguejiofor Esq, relied on the affidavit in support and orally argued the application for amendment and urged the Court to grant the application and to grant leave to the Appellant to amend the Appellant’s brief in line with the proposed amended Appellant’s brief. On his part, I. A. Mohammed Esq., learned counsel for the Respondent orally argued his opposition to the application on points of law, having not filed any counter affidavit to the affidavit in support of the application and urged the Court to refuse and dismiss the application.
ISSUES FOR DETERMINATION
My lords, having calmly reviewed the affidavit evidence of the Appellant/Applicant and having also dispassionately considered the contending submissions of counsel to the parties, I am of the view that only one issue arises for determination in this application, namely; “Whether the Appellant/Applicant has made out a case for and is thus entitled to be granted the leave of this Court to amend the Appellant’s brief filed on 23/12/2016 in the terms as shown in the proposed amended Appellant’s brief annexed as Exhibit A to the affidavit in support”

SOLE ISSUE
“Whether the Appellant/Applicant has made out a case for and is thus entitled to be granted the leave of this Court to amend the Appellant’s brief filed on 23/12/2016 in the terms as shown in the proposed amended Appellant’s brief annexed as Exhibit A to the affidavit in support”

APPELLANT/APPLICANT’S COUNSEL SUBMISSIONS
The learned Senior Advocate for the Appellant/Applicant had submitted that the amendment sought was simply to replace the words “Nigerian EPZ” under issue 7 in the Appellant’s brief filed on 23/12/2016 with the words “Within the jurisdiction of the Federal High Court” and

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contended that such an innocuous amendment sought would not in any way be prejudicial to the Respondent, who at any rate has all the ample opportunity to respond by making consequential amendments to the Respondent’s brief since the appeal has not been heard.
The learned Senior Advocate further submitted that it is not the law that once parties in an appeal had filed and exchanged their briefs an amendment would no longer be allowed by the Court and contended that by Order 4 Rules 1 of the Court of Appeal Rules 2016, an amendment to a party’s brief would be allowed if the need for such an amendment is made out by the seeking to amend his brief and urged the Court to grant the application in the interest of justice.
RESPONDENTS COUNSEL SUBMISSIONS
The learned counsel for the Respondent had submitted that the parties had since filed and exchanged their briefs and the appeal set down for hearing by the Court and that the amendment sought to be made was clearly in response to issues raised in the Respondent’s brief as deemed duly filed on 28/4/2017 by this Court and contended that if granted it would be extremely prejudicial to the Respondent on the issues as already joined with the Appellant in the Respondent’s brief.
The learned counsel for the Respondent further submitted that the amendment sought is clearly intended to and would overreach the Respondent in this appeal and contended that it would not be in interest of justice to grant the amendment sought and urged the Court to refuse and dismiss the application for amendment or alternatively in the unlikely event that the Court is minded to grant the application, a cost of N500,000.00 should be awarded against the Appellant in favor of the Respondent.
APPELLANT/APPLICANTS COUNSEL REPLY
In his reply, the learned Senior Advocate for the Appellant/Applicant left the issue of cost to the discretion of the Court and urged the Court to grant the application in the interest of justice.
RESOLUTION OF SOLE ISSUE
My lords, I have given considerable thought and attention to the facts and circumstances of this application as can be gleaned from the Affidavit in support. I have also taken time to review and consider the submissions of counsel. In the affidavit in support certain crucial and pertinent facts were deposed to and duly served on the Respondent, but the Respondent did not counter any of those depositions therein. The law is that facts deposed to in an affidavit by one party if not denied by the adverse party are deemed to be admitted and thus would require no further proof, unless such facts are in themselves palpably false. See Badejo V. Fed Ministry of Education (1996) 8 NWLR (Pt. 464) 15 LPELR – 704 (SC), where the Supreme Court per Mohammed JSC, had stated inter alia thus:
“When an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit or a reply to a counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed.”
See also Adekola Alagbe V. His Highness Samuel Abimbola & Ors. (1978) 2 SC 39.
I therefore, have no hesitation holding that the Respondent admits that the amendment sought is necessary to bring into proper focus all the issues involved in this appeal properly before the Court. I also find as admitted by the Respondent that the amendment sought if allowed would bring out succinctly the true intendment of the Appellant under issue 7 as distilled in the Appellant’s brief now sought to be amended. In MTN Nigeria Communications Limited V. Mundra Ventures (Nig) Ltd. (2016) LPELR – 40343 (CA), I had reiterated inter alia thus:
“The law is that …any fact admitted by one party need not be proved by the other party, thus facts of which the parties do not dispute are taken as duly established and therefore, no onus lies on either party to further prove such facts on which the parties are agreed.
See also Egbuna v. Egbuna (1989) 2 NWLR (pt. 106) 773; Yahaya v. FRN (2002) 23 WRN 127

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Now, having held the above facts as duly established on the deemed admissions of the Respondent, the law is trite that an amendment which is intended to bring into focus the real issues in controversy between the parties can be made at any time before judgment and may even be granted for the first time on appeal. However, an amendment which is intended by a party to change the nature of the matter as joined between the parties before the Court will generally be refused because it is not and cannot be said to have been made bona fide but male fide and is intended to overreach the other party. See Oladiti v. Sungas Co. Ltd. (1994) 1 NWLR (pt. 321) 433, World Gate Ltd v. Senbanjo (2000) 4 NWLR (Pt. 654) 681.
However, in all cases, an amendment merely for the purpose of determining the real issue(s) in controversy between the parties ought to be permitted at any stage of the proceedings, even where the action has been reserved for Judgment or an appeal provided that:
1. The Applicant is not acting mala fide or trying to overreach the other party;
2. The amendment will not entail injustice or embarrassment or surprise to the other party and by his blunder the Applicant has not caused injury to the other party which cannot be ameliorated by cost or otherwise assuaged.
See Ehidimhen v. Musa (2000) 8 NWLR (pt. 669) 640. See also Alhaji Abdulahi Adamu v. Mallam Mumkaila Isa (2014) LPELR -24169 (CA)
On the above position of law, it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision on the real matters in controversy, it is as much a matter of right on his party to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right and therefore an amendment will be allowed if it is intended to bring the pleadings in line with evidence already led. See Chief Ojah v. Chief Ogboni (1976) 4 SC 69, Nicholas Ogidi v. Chief Daniel Egba (1999) 10 NWLR (Pt.621) 41, Ajakaiye v. Adedeji (1990) 7 NWLR (pt. 161) 192, Ibanga v. Usanga (1982) 5 SC 103; Commerce Assurance Ltd. v. Alli (1992) 2 NWLR (Pt. 232) 10.
The aim of an amendment, as is commonly agreed, is usually to prevent the manifest justice of a case from being defeated by formal slips which may arise from inadvertence of counsel, whether former or present counsel. However, notwithstanding the utilitarian role of amendment in bringing into focus the real issue in controversy, the Court will not grant amendment to set up a different cause of action or change the character of the case of a party without an amendment of the writ of summons or counter claim. See Adesanoye v. Adewole (2004) 11 NWLR (Pt.884) 414, Ogboru v. Ibori (2004) 7 NWLR (pt.871) 192, Njoku v. UAC Foods (1999) 12 NWLR (pt. 632) 557; Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) 63, Uzor v. N. S. W. A. & ors. (1973) 1 All NLR 36.
It is also the law that an amendment sought purposely merely for the reason of derailment because of the other party or the proceedings is one which is certainly made in bad faith and must be refused. There must in all circumstances be good faith and good reason for an amendment to be obliged. Thus, the question of amendment, although as open ended as it may sound, is not however, a free for all match overreaching the cause of justice. It is rather for the just determination of a cause, which makes litigation effectual and meaningful. See Chima Chijioke V. Mrs Bosede Soetan (2006) 10 NWLR (pt. 990) 170; Secondi Bagban v. Motor Diwhre & ors (2005) 16 NWLR (pt. 951) 274, Adekeye V. Akin-Olugbade (1987) 3 NWLR (pt. 60) 214.
In all and above all, the Courts are more concerned with deciding the rights of the parties than in their errors or mistakes, which can be corrected at any stage, an amendment which will not cause injustice to the other party and can at worst be ameliorated by cost will be granted

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at any stage if it is in the interest of justice. See Okafor V. Ikeanyi (1979) 3 – 4 SC 99- See also Chief Eyo Eta v. Chief Okon Dazie (2013) LPELR 2013 6 (SC); Nabson Ltd v. Mobile Oil (1995) 7 NWLR (Pt. 407) 254; Okafor V. Ikeanyi(1979) 3 – 4 SC 99; Aboyeji v. Momoh (1994) 4 NWLR (pt. 341) 646, Chief Ojah v. Chief Ogboni (1976) 4 SC 69.

Now what is the amendment sought to be made to the Appellant’s brief in this application and which the Respondent vehemently opposes? I have looked at the issue 7 in the Appellant’s brief filed on 23/12/2016 and the submissions made thereon. I have also looked at issue 7 in the proposed Amended Appellant’s brief annexed as Exhibit A to the affidavit in support of the Application for amendment.
My lords, having considered the amendment sought in the light of the relevant and applicable principles of law on amendment, and having taken a second look at the affidavit and the amendment intended to be made to the Appellant’s brief, and it does appear so crystal clear to me that there is nothing in the amendments sought by the Appellant/Applicant that would overreach or prejudice the Respondent. The fear of the Respondent that issues had been joined by the parties by reason of the filing and exchange of their respective appellate briefs is allayed at once by the fact that not only the appeal is yet to be heard but also that the Respondent has the ample opportunity to if it so desire carry out any consequential amendments to the Respondent’s brief to meet whatever issues arising from the intended amendments to the Appellant’s brief.
My lords, this is more so since it is not the case of the Respondent that the amendment sought to be made to issue 7 would take it out of the grounds of appeal in this appeal. In the Appellant’s brief filed on 23/12/2016, at page 13 thereof, issue 7 was stated to have been distilled from Ground 9 of the Grounds of Appeal. In the proposed Amended Appellant’s brief filed on 14/6/2017, at page 12 thereof, issue 7 was stated to have been distilled from Grounds 7, 8 & 9 of the Grounds of Appeal. In whatever way it is looked at the amendments sought emanate from the grounds of appeal of the Appellant against the judgment appealed against. It therefore, neither introduced anything new nor amounted to a change of the issues properly arising from those affected grounds of appeal. In my finding therefore, the Respondent would neither be prejudiced nor in any manner be overreached if the amendment sought is granted by this Court, as it is clearly in the interest of justice to allow the amendment sought and to consequentially grant leave to the Respondent to make all such consequential amendments to the Respondents brief if it wishes so to do. This, in my view, is all that the justice of this application requires.
At any rate, in law the Respondents, in addition to the leave to make consequential amendment to the Respondent’s brief, can also be compensated by cost since an amendment can even be granted after the close of the cases of the parties but before judgment if it will not cause any injustice to the other party. The overriding consideration therefore, in all cases in which amendment is sought is the interest of justice so that all the issues in controversy is brought into proper focus and resolved by the Court at once in one fell swoop in the case rather than a piecemeal resolution of such issues in staggered and multiple proceedings. See Chief Ojah & ors v. Chief Ogboni & ors (1976) 4 SC 69 @ p. 77. See also Alsthom SA v. Chief Saraki (2007) 10 – 11 SC 48; Nwankwo v. Nwankwo (1999) 5 NWLR (pt. 293) 28.

In the final analysis and as I bring this ruling to a close, I find no good reason in the opposition of the Respondent to refuse the amendment sought by the Appellant/Applicant, as it was obvious as shown by the Appellant that it is in the interest of justice that the amendment sought should be allowed. I find the Appellants application an innocuous one flowing directly from Grounds 7, 8 & 9 of the Grounds of Appeal and thus not in any way springing any surprises on the Respondent as it brought

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nothing new to the table that could not be squarely met by a consequential amendment of the Respondent’s brief. Indeed, there was at the hearing of this application no suggestion of bad faith against the Appellant by the Respondent why the amendment should not be allowed. In law, a decision by a Court whether to grant or refuse an amendment is one which involves the due exercise of discretion by the Court. Being therefore, a matter for the exercise of discretion of the Court, it must be so exercised judicially and judiciously.
See SPDC v. Ambah (1999) 2 SCNJ 8151. See also Akaninwo v. Nsirim (2008) 1 SCNJ 275; Akinwale v. BON (2001) 4 NWLR (pt. 704) 448 @ p.458. See also Ashiru v. Ayoade (2006) 6 NWLR (pt. 976) 405 @ p. 425.

My lords, having therefore, considered the unchallenged facts as deposed to in the affidavit in support of the Appellant/Applicant’s application for amendment and the circumstances of this appeal being a criminal appeal, coupled with the proposed amendment sought, I hold that the Appellant/Applicant has sufficiently made out a case for and is thus entitled to the leave of this Court to amend the Appellant’s brief in line with the proposed amended Appellant’s brief. The sole issue is hereby resolved in the positive in favour of the Appellant/Applicant against the Respondent.
In the result, the Appellant/Applicant’s application filed on 14/6/2017 is hereby granted as prayed. Consequently, leave is hereby granted to the Appellant to amend the Appellant’s brief in line with the proposed amended Appellant’s brief annexed as Exhibit A to the affidavit in support of the application. The clean copy of the Amended Appellant’s brief dated 9/6/2017 and filed on 14/6/2017 is hereby deemed as having been properly filed and served, properly filing fees having been endorsed thereon as having been duly paid by the Appellant. By way of consequential order and in the interest of justice, leave is hereby granted to the Respondent to amend the Respondent’s brief should it wished to so do and to file the Amended Respondent brief within 14 days from the date of this ruling. There shall be no order as to cost in this application having already awarded cost in CA/L/909C/2016.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the lucid Ruling prepared by my learned brother, Biobele Abraham Georgewill, J.C.A., with which I agree.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO,J.C.A.: I have been afforded the privilege of reading the draft copy of the ruling just delivered by my Learned Brother, BIOBELE ABRAHAM GEORGEWILL, JCA and I agree with the reasoning and conclusion therein. I have nothing more useful to add.

Appearances

Babajide Koku, SAN with him, Chike Oguejiofor, Esq. For Appellant

AND

I. A. Mohammed, Esq. For Respondent.

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