Mrs. Olu Solanke V. G. Somefun & Anor. (1974)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, J.S.C. 

This appeal from the High Court of Lagos State raises the question as to whether an Application to substitute a fresh Statement of claim constitutes an amendment of a pleading under Order 33 of the former Supreme Court (Civil Procedure) Rules Cap. 211 in volume X of the 1948 Edition of the Laws of Nigeria which were then applicable in that State. The relevant rule reads:-

“The court may at any stage of the proceedings either of its own motion or on the application of either party, order any proceedings to be amended, whether the defect or error be that of the pany applying to amend or not, and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit, the real question or questions in controversy between the parties, shall be made upon such terms as to costs or otherwise as shall seem just.”

The write of summons in this suit IK/134/66 with the necessary endorsements was issued at the instance of the plaintiff’s attorney on 14/11/66. The case came before the court for the first time on 6/1/67 and after four other listings pleadings were ordered on 3/4/67 for reasons stated in the record of proceedings. The Statement of claim and plan were ordered to be filed within 60 days and the Statement of defence to be filed within 60 days ‘after service’.

The Statement of claim was however not filed until 13/11/67 instead of 3/6/67 when it was due. The Counsel who settled the Statement of claim was Mr. Olajide Solanke. As at the date of filing the time for filing had expired and an application for extension of time within which to file and serve the Statement of claim and plan was later granted up to 20/12/67. A consequential order was made that the Statement of defence be filed and served within 60 days after service of the Statement of claim.

The Statement of defence was not filed within ” the prescribed time and an application for extension of time was granted up till 13th May, 1968. The Statement of defence was filed on 11/5/68 by defendants counsel Mr.E.A. Nati.

The case which had been fixed for hearing for 2 days, that is, for 26th and 27th November, 1968, did not proceed as the plaintiff’s attorney did not appear and new hearing dates were fixed for 20th and 21st May, 1969. The case however, did not appear, according to the records, on the cause list until 2nd June, 1969, and in the meantime the Counsel for both parties had changed. Chief F.R.A. Williams whose brief was held by Mr. Solesi appeared for the plaintiff, and Mr. Alaka, whose brief was held by Mr. Allen, appeared for the defence. After two further adjournments the case was fixed for hearing by Beckley J. for 11th and 12th of February,1970.On the 9th of February, 1970, an application was filed on behalf of the plaintiff by Chief F.R.A. Williams for an order for leave to amend the Statement of claim by substituting for the one filed another Statement of claim a copy of which is attached to the affidavit in support. . . . . . . .”

The only relevant paragraph in the affidavit filed in support is paragraph 8 thereof and reads thus:

“That Chief Williams has advised and I verily believe that in order to enable all matters in controversy between the parties to be properly determined and also in order to enable him to bring before the court all the relevant facts concerning the Plaintiff’s claim it is necessary to amend the Statement of claim in the manner set forth in the document attached herewith and marked Exhibit “A”.

The deponent to this affidavit was one Mr. I.A. Adejare, a junior counse in the chambers of Chief F.R.A. Williams. There is nothing in the affidavit specifically setting out which paragraphs of the original Statement of claim were to be amended and the nature of the amendment being sought, except as indicated in the underlining portions of the affidavit above.

On 10/2/70 the case was again listed and mr. Akesode was recorded as appearing for plaintiff and Mr. E.O. Alaka for defendants; but the case was then adjourned for 2/3/70 for mention. On the latter date the motion to amend the Statement of claim was moved by Mr. Akesode. The relevant record of the proceedings for that date reads:

“Mr. Akesode moves motion under order XXXIII of the Supreme Court Rules Affidavit in support. Refers to paragraph 8 of the affidavit. Refers to Exh. “A”. The Plaintiff claims as per writ of summons.”

Learned Counsel for the defendants opposed the application for leave to amend on the grounds:

(a) that there was nothing in the affidavit and in the Statement of the Counsel who moved the application, indicating what paragraphs of the