Alsthom S.A. v. Chief Dr. Olusola Saraki

The appellants/applicants in a motion dated and filed on 19/4/2000 prayed the court that their amended writ of summons and the 2nd further amended statement of claim be amended as follows:
1. That the endorsement in the amended writ of summons and paragraph 17(a) of the 2nd further amended statement of claim be amended to read as follows:

“The plaintiffs claim jointly and severally from the defendant the sum of US $9,747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine

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Hundred and Fourteen US Dollars Forty-Four (cents) being outstanding debt owing to the plaintiffs as a result of a loan granted by the 1st plaintiff to the defendant at his request which debt in the sum of US $9, 747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four cents) the Naira equivalent of which was N45,387,204.42k (Forty-five Million Three Hundred and Eighty-Seven Thousand, Two Hundred and Four Naira, Forty- Two Kobo) as at 31st July 1987 converted to Naira at the prevailing exchange rate on 31st August 1987 of US $1.00 to N4.6561”.
2. That the reliefs sought contained in paragraph 4 of the notices of appeal of the 1st and 2nd appellants/applicants be amended to read as follows:
“Allow the appeal, set aside the majority decision, uphold the minority decision giving judgment to the 2nd appellant/applicant with the variation that the judgment of the Honourable Justice A.B. Adeniji in the High Court of Lagos State be varied by substituting the sum of US $9, 747,914.44 (Nine Million Seven Hundred and Forty Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four cents) being the outstanding debt owing to the 2nd appellant/applicant or the naira equivalent thereof, for the sum of N45,387,204.42 contained therein”.
In moving the applicants’ motion, their learned counsel H. O. Ajumogobia, Esq., said that the motion is supported by an 18 paragraph affidavit and a further affidavit of eight paragraphs to which are attached exhibits 1 B1, 1 B1A, 1 B2, 1 B3 and 1 B4 as averred in paragraph 5 of the further affidavit. Exhibit 1 B1 is a copy to the writ of

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summons filed on 2nd September, 1987, Exhibit 1 B1A is a copy of the amended writ of summons, Exhibit 1 B2 is a copy of the 2nd further amended statement of claim filed on 18th March, 1991, Exhibit 1 B3 is a copy of the statement of defence filed by the defendant on 4th December, 1992 and Exhibit 1 B4 is a copy of an excerpt of the record of proceedings at the trial. Paragraph 6 of the further affidavit makes reference to the further writs of summons and proposed amended 2nd further amended statement of claim which are annexed thereto and marked as exhibits SU 1 and 2 respectively.
Counsel submits that the exhibits specially referred to in paragraph 5 of the further affidavit show that the transaction between the parties was in US Dollars. And furthermore, counsel submits that after due trial, the trial court found the claim was one for indebtedness on the denomination of US Dollars in terms of US $9,747,914.46. Counsel also refers to Exhibit 1 B3, i.e. the statement of defence wherein the defendant/respondent raised the plea of illegality in that the loan was illegal and unenforceable being in foreign currency i.e. in US Dollars, contrary to the Exchange Control Act, 1962.

He finally submits that the amendment sought is to bring the pleadings in line with the evidence already adduced, and placed reliance on Okolo & Ors v. Nwamu (1973) 1 All NLR (Pt.1) 124 and Ijebu Ode Local Government v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt.166) 136 at P.157 or (1991) 1 SCNJ 1. He urges the court to grant the application.
Defendant’s/respondent’s learned counsel, Idris Kutigi.

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Esq., submits that the court, in considering the application, should refer to the proceedings in the High Court and the Court of Appeal in order to ensure that justice is done to either party, and that the motion for amendment should not be treated in isolation. He submits that an application for amendment as in the present case, should be taken at the hearing of the appeal and places reliance on Adekeye v. Akin-Olugbade (1987) Vol. 18 NSCC 865 at 871; (1987) 3 NWLR (pt.60) 214. It is counsel’s further submission that there is no evidence of the mode of repayment of the money nor was the trial court asked to enter judgment in US Dollars. He also contended that if the amendment is granted it will enable the applicant to put in a new issue neither fought in the trial court nor in the Court of Appeal. Finally, counsel submits that the amendment sought is not in line with the evidence led at the trial.
In conclusion, counsel says that he relies on all the paragraphs of the counter affidavit and urges the court to dismiss the application.
Replying, Mr. Ajumogobia submits that the application is not an attempt to raise a fresh point of law for the first time but a mere application for amendment of the writ of summons and paragraph 17(a) of the 2nd further amended statement of claim, as well as the relief sought as set out in paragraph 4 of the appellants/applicants notice of appeal.
I wish first to dispose of the submission by learned counsel for the respondent wherein he contended that the application for amendment, such as in the present case, should be taken together at the hearing of the appeal for

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which he placed reliance on Adekeye v. Akin-Olugbade (supra). Suffice it to say that such an approach has nothing to commend it. It is clearly neater to dispose of all interlocutory applications in an appeal before seriously embarking on the appeal properly so-called. Be that as it may, the above authority cited in this regard is demonstrably unhelpful to the submission made by learned counsel. The same is accordingly discountenanced.

There is yet another submission by respondent’s learned counsel to the effect that the applicants’ application is a surreptitious ways of raising a fresh or new issue not addressed at the two lower courts which ought not be allowed. I do not accept this submission. The procedure to allow a party to an appeal to canvass a new issue not raised at the lower court is firmly established. The present application is not even remotely similar to it.
Reading the pleadings of the parties as amended from time to time – and the evidence tendered at the trial bearing in mind that the respondent did not field any witness and the judgment of trial High Court, it is beyond dispute that the crux of the controversy between the parties was a claim initiated by the appellants/applicants for the repayment of a loan given by the 1st appellant the respondent at the latter’s request in the sum of US$5,000,000 and the said loan with interest was guaranteed by the 2nd appellant. The striking feature of the parties’ loan agreement is that the loan was given in US Dollars. When the demand was made for the refund of the indebtedness, the respondent, by the letter dated 15th

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September, 1986, written to 1st appellant did not only acknowledge the loan of US $5,000,000 but unequivocally informed him that I”(meaning the respondent) have instructed my solicitor Chief F.R.A. Williams (SAN) to contact you and arrange settlement for the loan”.
The learned trial Judge, Adeniji, J entered judgment on 30th June, 1993 in favour of the applicants in the following terms:
“Judgment is hereby entered for the plaintiffs in the sum of N45,387,264.42 kobo being outstanding debt owing to the plaintiffs as a result of a loan granted by the 1st plaintiff to the defendant at his request and which debt is now in the sum of US $9,747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four cents), i.e. as at 31st July 1987 converted to Naira at the prevailing exchange rate on 31st August, 1987 of US $1.00 to N4.6561.
Interest on the said debt as at the rate of 18% per annum, From 1st September, 1987 until judgment and thereafter at the same rate of interest on the judgment debt and reducing balance until the total debt is liquidated”.
Having regard to the preponderance of evidence laid before the trial court and the true nature of the transaction between the parties in respect of which the parties, at all material times, were at one that the sum of US $5,000,000.00 loaned in that foreign currency or, presumably, the naira equivalent of the said loan plus the accrued interest. At the time of entering judgment by the trial Judge, the principal sum plus interest thereon had amounted to US $9,747,714.44.

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To meet the justice of this case, applicant’s learned counsel in this appeal has, by this application, sought to amend the writ of summons and the 2nd further amended statement of claim in this case, in terms reproduced earlier in this ruling, in order to reflect this understanding between the parties.
The question that calls for determination is whether in all the circumstances of this case, ought this application be granted or denied. In law, to amend any legal process affords a party – whether a plaintiff or defendant and even the appellant or respondent on appeal – to correct an error in the legal document. Such correction can be made informally where the process is yet to be served. After service, however, correction on legal process may be effected, depending on the prevailing rules of court, either by consent of both parties or upon motion on notice, like the case in hand; such corrections are common place. Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected, in the interest of justice, ensuring always that no injustice is occasioned to the other party. The weight of judicial authorities leans in favour of allowing a party to amend its legal processes whenever the need arises in order to ensure that the real matter in controversy between the parties, shorn of manifest errors, mistakes and slips, is adequately brought to focus and determined, with the proviso, however, that the right of the adversary party is neither unduly compromised nor unredressed.
The last point that is necessary to be made in this regard is that once the justice of the case so demands, the court can grant an amendment at any stage of the proceedings.

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Thus, in Williams Rainy v. Alexander Bravo (1872) L.R. 4 P.C. Appeal 287, the refusal by the trial Judge to allow an amendment to be effected when the judgment was being delivered was reversed by the privy council and the amendment was granted. Also in J. Oguntimehin v. K Gubere & Anor (1964) 1 All NLR 176 at p. 180, this court upheld the amendment of pleadings after close of evidence by plaintiff and defendants and rejected the trial Judge’s ruling that the application for amendment should have been made earlier.
In the case on hand, evidence showing that the loan transaction between the parties and even the respondent’s preparedness to repay the loan in US Dollars was overwhelming and incontestable, more so as the respondent did not field any evidence whatsoever at the trial. Evidence relevant and wholly germane to effect the amendment sought herein had been led by the applicants without any opposition whatsoever from the respondent. No doubt it was clear to the trial Judge and discernible from his judgment that the loan agreement although exclusively transacted in US Dollars was, however, by some slip claimed in Naira for which the court felt obliged to enter judgment as it did.

It will wreck unprecedented havoc and grave injustice for this court – the court of last resort – to deliberately shut its eyes to the obvious inequity that would result therefrom. No evidence would be required to effect the amendment sought. The aim of the amendment is to bring the pleadings in line with the evidence already led. It has not been suggested that the amendment will take the

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respondent by surprise or prejudice him or cause an undue delay. It seems to me that the circumstances are manifestly compelling that the amendment be granted.
Accordingly, it is ordered, first, that the endorsement in the amended writ of summons and paragraph 17(a) of the 2nd further amended statement of claim be amended to read as follows:
“The plaintiffs claim jointly and severally from the defendant the sum of US $9,747,914.44 (Nine Million Seven Hundred and Forty Seven Thousand, Nine Hundred and Fourteen US Dollars Forty Four (cents) being outstanding debt owing to the plaintiffs as a result of a loan granted by the 1st plaintiff to the defendant at his request which debt in the sum of US $9,747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four cents) the Naira equivalent of which was N45,387,204.42k (Forty-five Million Three Hundred and Eighty-Seven Thousand, Two Hundred and Four Naira, Forty Two Kobo) as at 31st July 1987 converted to Naira at the prevailing exchange rate on 31st August 1987 of US $1.00 to N4.6561″.
Second, that the relief sought which is contained in paragraph 4 of the notice of appeal of 1st and 2nd appellant/applicants be amended to read as follows:
Allow the appeal, set aside the majority decision, uphold the minority decision giving judgment to the 2nd appellant/applicant with the variation that the judgment of the Honourable Justice A.B. Adeniji in the High Court of Lagos State be varied by substituting the sum of US $9,747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine Hundred and Fourteen US Dollars

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Forty-Four cents) being the outstanding debt owing to the 2nd appellant/applicant or the naira equivalent thereof, for the sum of N45,387,204.42 contained therein”.
There will be N1,000.00 costs in favour of the respondent.

KARIBI-WHYTE, J.S.C.: I have had the privilege of reading in draft the ruling in this application of my learned brother, Achike, JSC. I agree entirely with his reasoning and conclusion granting this application.
The application was brought by appellants in their motion dated and filed on 19th April, 2000 praying this court for amendment of the writ of summons and the 2nd further amended statement of claim in this appeal.

The prayer is for the amendment of the endorsement in the writ of summons and paragraph 17(a) of the 2nd further amended statement of claim to read as follows:-
“The plaintiffs claim jointly and severally from the defendant the sum of US$9,747,914.44 (Nine Million Seven Hundred and Forty Seven Thousand, Nine Hundred and Fourteen US Dollars Forty Four (cents) being outstanding debt owing to the plaintiffs as a result of a loan granted by the 1st plaintiff to the defendant at his request which debt in the sum of US $9,747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four cents) the Naira equivalent of which was N45,387,204.42k (Forty-five Million Three Hundred and Eighty-Seven Thousand, Two Hundred and Four Naira, Forty Two Kobo) as at 31st July 1987 converted to Naira at the prevailing exchange

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rate on 31st August, 1987 of US $1.00 to N4.6561″.
In paragraph 4 of the notice of appeal of the 1st and second appellants/applicants,the following relief was sought-
Allow the appeal, set aside the majority decision, uphold the minority decision giving judgment to the 2nd appellant/applicant with the variation that the judgment of the Honourable Justice A.B. Adeniji in the High Court of Lagos State be varied by substituting the sum of US $9,747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four cents) being the outstanding debt owing to the 2nd appellant/applicant or the naira equivalent thereof, for the sum of N45,387,204.42 contained therein”.
Concisely stated, the amendment is to state wherever applicable in US Dollars, the claim hitherto expressed in Nigerian Naira.
In arguing the motion before us, H. Odein Ajumogobia, Esq. for the appellant/applicants relied on the 18 paragraph affidavit of the applicants and a further affidavit of 8 paragraph annexed as Exhibit 1 B1, 1 B1A, 1 B2, 1 B3 and 1 B4 as averred in paragraph 5 of the further affidavit. These are copies of the writ of summons, filed on 2nd September, 1987, the amended writ of summons, a copy of the 2nd further amended statement of claim filed on the 18th March, 1991, a copy of the statement of defence filed by the defendant on 4th December, 1992 and a copy of an excerpt of the record of proceedings at the trial, respectively.

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In paragraph 6, the further affidavit referred to the writ of summons, and the proposed amended further amended statement of claim annexed thereto and marked Exhibits SU1 and SU2 respectively.
In his submission, learned counsel submitted that the exhibits referred to in paragraph 5 of the further affidavit disclose that the transaction between the parties was in US Dollars. After due trial, the trial court found the claim to be one for indebtedness on the denomination of US dollars in the sum of US $9,747,944.46. He referred to the statement of defence i.e. Exhibit 1 B3, wherein the defendant raised the plea of illegality, and that the transaction being in foreign currency was illegal and unenforceable, and contrary to the Exchange Control Act, 1962.
The amendment sought is to bring the pleadings in line with the evidence already on record and that no new evidence, oral or documentary was required. Learned counsel cited and relied on Okolo & Ors v. Nwamu (1973) All NLR (Pt.1) 124; Ijebu-Ode Local Government v. Adedeji Balogun & Co. (1991) (Pt.166) 157.
He urged the court to grant the application.
Mr. Idris Kutigi, Esq. learned counsel for the defendant, relying on all the paragraphs of respondent’s counter-affidavit, opposed the application. In his submission, the court, in considering the application, should refer to the proceedings in the courts below to ensure that justice was done to either party, and that the motion should not be treated in isolation. He argued that the application for amendment should be taken at the hearing of the appeal. He relied for this submission on Adekeye v. Akin-

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Olugbade (1987) vol. 18 NSCC 865, 871; (1987) 3 NWLR (Pt.60) 214. He submitted that there was no evidence of the mode of repayment of the money, nor was the trial court asked to enter judgment in US dollars. He contended that granting the amendment will enable the applicant to introduce a new issue not fought in the court of trial and not in the court below.
In a short reply, Mr. H. Odein Ajumogobia for the applicants pointed out that there was no attempt by the amendment sought to raise a new point of law for the first time. The prayer merely seeks amendment of the writ of summons, paragraph 17(a) of the 2nd further amended statement of claim, as well as the relief sought as set out in paragraph 4 of the appellants/applicants notice of appeal.
The substance of the opposition of the amendment sought is that the application for amendment should not be taken in isolation i.e. consideration should not be done at this stage of the proceedings; but that the court should do so at the hearing of the appeal itself. The reason for this suggestion, namely, to ensure that justice is done to either party, is the basis of all considerations for amendment.

It is for that same reason that all outstanding errors which can be cured by amendment likely to confuse in the hearing of the substantive action should be amended before the hearing of the appeal. This is because to leave the error so discovered uncorrected, will without doubt lead to the doing of injustice to the party who will suffer injury if it remained uncorrected.

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The basic principle governing the granting of leave to amend is for the purpose of determining the real issue or issues in controversy between the parties. See Cropper v. Smith (1884) 26 Ch. 700. The courts have always followed the established principle that the fundamental object of adjudication is to decide the rights of the parties and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights – See A. V. Amadi v. Thomas Aplin & Co. (1972) 1 All NLR (Pt.1) 409.
It is the sacred duty of courts to ensure that everything is done towards the facilitation of the hearing of the matter and the expedition of the hearing of the case. I do not consider the postponement of the resolution of an extant ambiguity which can be cured by an amendment, to the hearing of the substantial appeal as was suggested by Mr. Idris Kutigi, is the best manner of dealing with the amendment of a discovered omission. The suggestion of counsel truly obfuscates rather than assists in the curing of the ambiguity.
The other, but more profound suggestion by Mr. Idris Kutigi is that the amendment sought is a clever way of raising a fresh or new issue not addressed before the courts below and ought not be allowed. Mr. H. Odein Ajumogobia moving the motion has pointed out that applicants were not raising any new issues and do not require any new evidence in support of the application. They are relying entirely on the evidence before the court and that the amendment sought is to bring the claim in line with the evidence. My understanding of the nature of

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the amendment on reading the amendment, the supporting affidavit and the documents attached relied upon, gives me the satisfaction that the amendment does not involve consideration of and not likely to raise any new issues not raised in the courts below. I accordingly reject the suggestion of Mr. Kutigi.
I shall now consider whether the application before us should be granted. I have already stated the facts relied upon and the arguments of counsel in this application. It rewards clarity to state even if in outline, the genesis and facts of this transaction which has eventually resulted in the instant litigation.

The loan with interest, subject matter of this action was given in US Dollars by the 1st plaintiff to the defendant. It was guaranteed by the 2nd plaintiff. When the demand was made for the repayment of the loan, the defendant wrote to the 1st plaintiff by the letter dated 15th September, 1986 acknowledging the indebtedness of the loan of US $5,000,000 and in that letter informed the 1st plaintiff that he, the defendant, had instructed his solicitor, Chief F.R.A. Williams, SAN to contact 1st plaintiff to arrange settlement of the loan.
It is pertinent to observe that although the transaction described above was made in US Dollars, the writ of summons claimed the sum of N45,387,264,42 Kobo, being the naira equivalent of $9,747,914.44 US Dollars converted to naira at the prevailing exchange rate on 31st August, 1987 of N1.00 to US $4.8561. The statement of claim also at paragraph 11 expressed it in the same terms. Judgment was entered for the plaintiffs/applicants

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in terms of the writ of summons in the High Court as follows:
“Judgment is hereby entered for the plaintiffs in the sum of N45,387,264.42 kobo being outstanding debt owing to the plaintiffs as a result of a loan granted by the 1st plaintiff to the defendant at his request and which debt is now in the sum of US $9,747,914.44 (Nine Million Seven Hundred and Forty-Seven Thousand, Nine Hundred and Fourteen US Dollars Forty-Four cents), i.e. as at 31st July 1987 converted to Naira at the prevailing exchange rate on 31st August, 1987 of US $1.00 to N4.6461.
Interest on the said debt as at the rate of 18% per annum. From 1st September, 1987 until judgment and thereafter at the same rate of interest on the judgment debt and reducing balance until the total debt is liquidated”.
This amendment is sought in order to reflect the understanding between the parties in view of the evidence before the trial court and the nature of the transaction between the parties. The question is whether this amendment ought to be granted in all the circumstances of this case.
It is well established that leave to amend may be made and granted at any stage of the proceedings. See Totty v. Effiong Udofia & Anor (1966-67) 10 ENLR 45. It is however important to seek such leave as soon as the defect in the proceedings is detected. Notwithstanding this guide, an amendment may be sought, and if appropriate, granted on appeal, if it is to amend the record of the trial court in line with the fact proved before the trial court and the decision. This power is to be exercised to prevent the occurrence of substantial injustice – See Metal

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Construction (W.A.) Ltd. & Qrs. v. Miglore & Anor (1976) 6-9 SC 163, 171-172; Karimu Laguro & Anor v. Toku and Anor (1992) 2 NWLR (Pt.233) 278.”14 That it would be in the interest of justice for the writ of summons and statement of claim to be amended to reflect the appellant/applicant’s claim for the United States dollar sum of the adjudged debt plus interest or the naira equivalent thereof at the date of payment or when the Honourble Court might authorise enforcement of its judgment in the event that this appeal shall succeed.”

13. That I am informed by Miss Ibukun Odegbaike, Accounts Officer of Guaranty Trust Bank Plc., and I verily believe that the current rate of exchange between the Naira and the United States Dollar is N101.50 to US $1.00.
    16. That the amendment is necessary and proper to correct the pleadings and vary the judgment of the High Court of Lagos so that the position under the judgment shall be clear and free from ambiguity and to enable this honourable court give an adequate and just consideration to the appellant/appellant’s appeal.”Application for amendment is generally refused if granting it will result in injustice to the other side – See Adetutu v. Aderohumnu (1984) 6 SC 92; (1984) 1 SCNLR 515. It will surely be refused if made malafide. There is no evidence that this application was made mala fide. On the contrary, the supporting affidavit has deposed to the fact that unless the amendment was made, and the judgment of the trial court varied accordingly to correct the error and

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omission in expressing the manifest intention of the court in the event of the appeal being allowed, injustice will result to the 2nd appellant .See paragraph 17.
The principles taken into account in considering whether an application for amendment should be granted as inter alia, the attitude of the parties, the nature of the sought in relation to the suit, the question in controversy and the time when the amendment was being sought. Of course, where the amendment was being sought mala fide or if the amendment even if granted will not cure the defect in the proceeding, the court will not grant it – See Lagunju Abasi v Raji Labiyi (1958) WRNLR 12. It is essential to the grant of application for amendment for the applicant to show the materiality of the amendment sought. See Oyenuga v. Provisional Council of the University of Ife (1965) NMLR 9. The courts will not easily grant an application for amendment which if granted will unduly delay the hearing of the suit or unfairly prejudice either party to the suit. See Dominion Flour Mills Ltd. v. Abimbola George (1960) LLR 53.

Where the application for grant of amendment falls within these principles, as in the application before us, the court will have no hesitation in granting it. The fact that the application was first brought in this court will not affect the grant. In this case, all the evidence necessary for the grant of the application were before the trial court, and if amendment was sought there, it would have been granted. For instance, there is evidence of the loan transaction between the parties in US Dollars, which is the issue in controversy requiring amendment. There was

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evidence of the preparedness of the defendant/respondent to repay the loan. There is no evidence in contradiction. It was clear to the trial Judge as could be inferred from his judgment that the loan transaction was in US dollars, but the claim and relief sought were expressed in Naira. The court gave judgment in Naira. There is in my opinion, no argument against the materiality of the amendment. I do not think this court can tolerate a situation where an error which can be corrected without prejudice or injustice to either party should be allowed to remain uncorrected because the adverse party would wish it so. I am of the opinion which is supported by several decided cases of this court that an application for an amendment which will not occasion injustice to the other party, even if the courts below have failed to do so will be granted. See Laguro v. Toku (1992) 2 NWLR (Pt.223) 279.
The aim of the amendment in the application before us is to bring the pleadings in line with the evidence on record. There is no suggestion that any new evidence is being sought or will be required on either side because of the amendment. There is also no question of undue delay to the proceedings or prejudice to the respondent. There is no doubt therefore the course of justice demands the grant of this application. I therefore accordingly so order.
I abide by the orders and the costs awarded in the ruling of my learned brother, Okay Achike, JSC.