The propriety or Otherwise of the of the Original version of an Amended originating Process

Introduction

Originating process being processes used in commencement of actions in court may be amended by leave of court at such time when the court deems it expedient in the interest of justice. Sometimes, either as a result of inadvertence of the the lawyer applying for such an amendment or as a result of other circumventing events, important ingredients which ought to be in the new processes are carelessly omitted, thereby possing a serious challenge to the life of the suit. This article therefore seeks to address the fate of the amended version of an originating process vis-a-vis it’s original counterpart.

On Wednesday the 21st day of October 2020, at the Federal High Court, Abakaliki judicial Division, in a matter for the enforcement of Fundamental Human Rights filed against the Police authority and two other respondents. The applicant had at the course of the proceedings sought and obtained the leave of court to amend the Originating Motion. The processes where amended to reflect the omitted changes. There were five exhibits annexed to the original version of the Originating Motion, which was outrightly omitted by the learned counsel to the applicants in the new amendment. While adopting the application, the learned presiding judge, Hon. Justice Akintayo Aluko informed the the learned counsel to the applicant that the exhibits he referred to have attached to the affidavit was not before the Court. Unfortunately, the exhibits were in the old processes which have been amended, but the applicant’s counsel forgot to attach them in the new process. The learned counsel sought to adopt the two processes simultaneously, i.e both the original and the amended version. He argued profusely that the order for amendment granted by the court was in respect to the names and designation of the Respondents which he could not ascertain as at the time of filing the application, and which has been duly amended. He urged the court to consider the exhibits annexed to the affidavit in the old processes since the amended version does not contain the said exhibits, and use same in just determination of the suit. In essence, he urged the court to go ahead and treat the two documents as one for the purpose of the application. Considering the above argument, it is submitted that the most relevant document which the court is bound to consider is the amended version of the process.

The law is settled in Alhaji Fatai O. Yusuf v. Mobil Oil Nigeria Plc (2019) 13 NWLR (part 1689) p. 374-396 that once an amendment is ordered by a competent court of law, what stood before the amendment is no longer material before the court and no longer defines the issues to be tried. It takes effect from the commencement of the action. The court cited the following judicial authorities as a guide: Vulcan Gases ltd v. Gesellschaft Fur Industries, Gasvenvertung AG (GIV) (2001) 9 NWLR (pt. 719) 610; Nwosu v. I.S.E.S.A (1990) 2 NWLR (pt. 135) 688; Registered Trustees A.O.N v. N.A.M.A (2014) 8 NWLR (pt. 1408) at pp. 392-393, Paras. F-A.

Given the circumstances, what should the learned counsel to the applicant have done?

It is submitted that the proper thing to do in the circumstances is for the applicant’s counsel to have continued to adopt the amended version of the process and after the adoption, he would have smartly averted the mind of the court to the exhibits contained in the original processes, since it is already before the court, and the courts may look at all the documents before it for the purpose of determining a particular matter. It is a known principle of law that the court is bound to consider documents placed before it for the purpose of determining a particular suit, provided they are in the Court’s file.

The court of Appeal as to the duty on trial court to consider all documents placed before it, has this to say in NDCA & GASPA PROJECTS MANAGEMENT ENGINEERING LTD v. GASPA PROJECT MGT. GROUP LTD & ORS (2019) LPELR-CA/MK/79/2017, on the power of court in relation to documents in case file, the court held that, “Before then however, the Appellant has contended that the trial Court was in error when, in the consideration of its application for joinder, it made references to the pleadings of the parties as well as the witnesses’ statements on oath filed in the case. However, the Appellant is mistaken in this submission as the law is not on its side. Indeed, the learned trial Judge was not precluded from looking into the processes filed in the substantive suit and making apposite use of them with regard to the application for joinder. This is notably so because the legal principle has been put beyond peradventure that a Court is competent to use documents outside an Applicant’s affidavit, but within the case file, to arrive at a just decision in a case. (emphasis mine) Courts have consistently held, and it needs to be emphasized, that it is not improper for a High Court to refer to documents in the file of the case before it, but outside the Applicant’s affidavit, in arriving at a decision. See the decisions of this Court in Ayo-Ayodele Pharmaceutical Chemist (Nig.) Ltd V NIDB Ltd (2000) LPELR-10109(CA) per Onnoghen, JCA (as he then was); Ideh V Onyejese (1997) LPELR-8066(CA) 31, per Akpabio, JCA; Mhambe V Shidi (1994) 2 NWLR (Pt. 326) 321 at 330; Oke V Aiyedun (1986) 2 NWLR (Pt. 23) 548. Therefore, the action of the lower Court in this regard is in order.” Per SANKEY, J.C.A. (Pp. 17-18, Paras. C-C). See similar decision in Mohhamed v. Abdulkadir (2008) 4 NWLR (Pt. 1076) 111 at Pp. 156-157, paras. G-A; Pp. 156-157, paras F-D.

On the other hand, the learned counsel to the applicant would have argued concurrently that the omission was due to his inadvertence which inadvertence cannot be meted against the litigant. The courts have on so many occasions held that mistakes of counsels cannot be punished against litigants. The court of Appeal in RIVTRUST SECURITIES LTD & ORS v. AMCON (2019) LPELR-CA/L/1026/2018, as to whether a party can be liable for the error or inadvertence of his counsel held, “It is settled law that Courts do not normally punish litigants for the faults or mistakes of their counsel: BOWAJE vs. ADEDIWURA (1979) 6 SC 143 at 147. However, for this general principle to be availing, there has to be shown a fault or mistake made by counsel. The Courts will not regard the waving of mistake of counsel as a universal talisman that will afford a paregoric in all cases. It must be true, genuine and availing in the diacritical circumstances of the particular case. The court cited: IROEGBU vs. OKWORDU (1990) 6 NWLR (PT 159) 643 at 669 .and ERINFOLABI vs. OKE (1995) 5 NWLR (PT 395) 296 at 302-304 in reaching at this decision.” Per OGAKWU, J.C.A. (Pp. 22-23, Paras. F-C).

Conclusion

Many times, at the course of legal representation, counsels make very big mistakes which mistakes have far reaching negative effect on the fate of the case at hand, such as the one under review. It’s unfortunate that the learned counsel to the applicant urged the court to use the two documents, which was manifestly wrong in our own opinion, i.e both original and amended version without contemplating the adverse legal implications. Although, the learned trial judge has not given ruling on the issue, but I am optimistic that his ruling will not be in favour of the applicant. So, at any point in time, it is instructive for counsels to be vigilant, conscientious and to take into cognizance of those little factors which might spoil a good case, and to take positive steps to put them out of the way in order to give your clients the best legal representation obtainable.

I appreciate Hon. Justice Akintayo Aluko of the Federal High Court, Abakaliki, in whose court my team is currently undergoing internship exercise, and for giving me the opportunity to briefly offer my humble opinion in respect to the issue at hand.

About the author

Ekuma, Chinonso George is the President, Ebonyi State University Students’ Bar Council and the Head, Department of Research, EBSU Law Clinic. He is passionate about law practice and his tenure has so far engaged Students into Internship programs in best law firms across Nigeria, and currently, the Federal High Court, Abakaliki. His areas of interest include: Litigation, Energy and Natural Resources, Banking and Finance and Corporate and Commercial practice. For Comments: 08143576372; [email protected]

For knowledge and Justice