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
original Statement were to be amended and the nature of such amendments; and
(b) the grant of the application will cause undue delay to a fair trial of the case.
Mr. Akesode was then called upon to reply as to whether the substitution of a fresh Statement of claim for one previously filed constitutes an amendment under the rule. The Counsel replied thus:
“Substitution is an amendment. It is correct to substitute a Statement of claim for another one. This could still be an amendment Mr. Akesode states that what has been done in this case is a correction of the old Statement of claim. Everything remains substantially the same. Submits that Paragraph 10 of the amended Statement of claim is the same as paragraph 6 of the Statement of claim dated 13/11/ 67. Paragraph 11of the proposed amendment is substantially the same as paragraph 7 of the old Statement of claim dated 13/11/67.
“Also compares paragraph 3 of the Old Statement of claim with paragraph 2(11) of the old Statement of claim with paragraph 11 of the new amendment. Submits that in both Statements of claim, the claim is still the same. The amendment was only an adding and surbodinating excuse.
The court will not refuse to allow an amendment reply (merely) because
It substitutes a new case. . . .
There is nothing stopping a litigant from “a” new facts or re-arrangement of facts . . .”
The learned trial judge considered the arguments on the application and in a considered ruling dated 17/3/70 stated inter alia:
“The question that falls to be determined is whether this, in effect, is really an application for an amendment. WHARTONS Law Lexicon, fouteenth edition, defines an amendment as follows:
“A correction of any errors in the writ of pleadings in actions, suits, or prosecutions.”
“In this case the question is whether what is proposed is an amendment. Is this really an amendment to a defect or error on the Statement of claim. There is no specific mention in the proposed amended Statement of claim of the errors or omissions in the original Statement of claim which are sought to be corrected. An amendment, in my view, presupposes the continued existence of what is proposed to amend. You amend a defect or error in an document which is still existing. You do not, “in my view, amend a document by withdrawing the docwnent in its entirety and substituting a new one.”
The learned trial judge then rejected the application to amend. Three grounds of appeal were filed against the ruling and they are:
“1. The learned trial judge erred in law in holding that the proposed amendment is one which he has no power to grant.
- The learned trial judge erred in law in failing to observe that the proposed amendment is one that ought to have been granted.
- The learned trial judge in refusing to grant the amendment prayed for is unreasonable, unprecedented and not justified by the rules of Court.”
Chief Williams learned Counsel for the appellant, submitted before us that the question which the learned trial judge had to decide was whether by substituting the amended Statement of claim for the original one, such substitution constitutes an amendment within the provision of Order 33. It is his contention that such substitution is an amendment to the Statement of claim and this it ought to have been allowed by the learned trial judge. Mr. Alaka learned Counsel for the respondent countered that before any amendment of a Statement of claim can be granted, the nature of the amendment should be specifically shown to be such as is competent in the terms of Order 33 and that such amendment is intended to cure a defect or error.
As the learned trial judge quite rightly said, it is in our view, the duty of any party applying for leave to amend any proceedings to bring such an amendment within the provisions of Order 33. In the lower court, the counsel who appeared for the appellant drew attention to three paragraphs of the Statement of claim as being the same as those in the fresh Statement of claim sought to be filed, no indication was given as to what the other paragraphs in the new amended Statement of claim were intended or expected to cure in the original one. Rules of court are meant to be complied with and therefore any part or counsel seeking the discretionary power of a judge to be exercised in his favour must bring his case within the provisions of the Rules on which he purported to make his application. If Counsel fail to discharge their duties in that respect, it is but fair and right that court should refuse to exercise its discretionary power. Paragraph 8 of the Affidavit in support of the application in the lower court did not set out the nature of the amendment proposed in the fresh Statement of claim; all it did was to indicate that the amended Statement of claim sought to be filed will determine in the existing suit the real question or questions in controversy between the parties.
In the original Statement of claim, dated 6/11/67 the root of title of the plaintiff, is set out in paragraphs 2 to 5. In the fresh Statement of claim, intended as an amendment to the original Statement of claim, the root of title is set out in paragraphs 1 to 6 . To compare both it is clear that whilst the plaintiff in the first Statement of claim relies on two documents, in the amended or fresh Statement of claim more than two documents would be relied upon. In short, therefore, the plaintiff intended to introduce new facts in the pleading to which the defendants by their Statement of defence had not joined issues. It is therefore apparent that as the defendants may have to ask to be allowed to plead to the new facts the trial of the case must be further delayed.
We wish, however, to state in a general way a rule of practice which, if followed might minimise interlocutory appeals on these procedural matter to this court. It is conceded that when Counsel are changed by parties, they may seek to advise their clients in respect of their claim or defence as the case may be in quite a different manner to the advice of their previous Counsel. If in order to give effect to such advice, a new averment or new facts are to be pleaded, then in an application to the court seeking leave to amend pleadings to introduce such new facts, the counsel must be informed of the circumstances so that in exercising its discretionary power, it will have before it sufficient facts on which an application can be considered. It is in the interest of both parties to a case that undue delay to trials should be avoided; such is the position in this case where the writ was issued in 1966, and hearing dates had been fixed on two previous occasions yet it had not been heard till date. The application for the amendment in this case was filed a few days before the second hearing date and the result is that the case had had to be adjourned for another date. It may be argued that this case had already been delayed hearing for four years, a funher delay of another year may not be unreasonable if the delay will lead to a final decision on all matters between the parties. This might be so in this case. But the question is, is it desirable or unavoidable
Rules of court are made to be followed. They regulate matters in court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of court that makes for quicker administration of justice. Some exceptions, for example, amendments of proceedings are provided for, but such exceptions should be resoned to where absolutely necessary. See:-
“(a) Malmo v. Olushola 15 W.A.C.A. 12;
(b) Dako II v. District Commissioner, Birim 3 W.A.C.A. 68; (c) Somade v. Ogunbiyi 3 W.A.C.A. 48 and (dd) England v. Palmer 14 W.A.C.A. 659.”
We wish to refer specially to the case of Luigi Ambrosini Ltd. v. Victor Ade Allen and Three Others 8 N.L.R. 24, where at page 34 the Full Court of Appeal dealt with the Rule of court now under consideration (then known as Order XXVI of the Rules of the Supreme Court of Nigeria (Schedule 2A). What arose for consideration in that case was whether the trial judge was right in amending an oral plea. It is not a matter which is on all fours with the present case on appeal, but the principle governing amendments of proceedings during trial was fully dealt with.
We have drawn attention to the fact that all that was sought to be done in this case was to set our certain documents on which the Plaintiff will reply in proof of his claim. Unless these documents were specifically pleaded objection might well be validly taken to their admissibility and we, therefore, conjecture that that might be the reason why the plaintiff sought the amendment as contained in the fresh Statement of claim. As the learned Counsel for The defendants conceded in the lower court that he would not object to the grant of the amendment sought if that court is minded to grant it, we will treat this appeal in the light of that concession and consider that a grant of the amendment will not embarrass or jeopardize the interests of the defendants in any case. To that extent, therefore, and in order to minimise further delays, we shall allow the appeal so that the case can be allowed to proceed speedily.
We do not wish to decide whether the learned trial judge was right in rejecting “substitution” for “amendment” but we feel that if he had compared the two documents, he would have discovered that the use of the word “substitution” is a misnoer. We have adopted this most favourable attitude to effectuate a sooner determination in this case. It is not to be regarded as a precedent.
We have decided this case on the trend of the arguments before us and the cases cited.
Although the issue strictly speaking concerns the amendment of pleadings the rule in fact employed deals with amendment of proceedings. We refrain from deciding the point in strict regard to amendment of proceedings because the rules in question are now no longer in use in the High Court of Lagos State since the new rules are at present in operation.
This case was instituted in 1966 and in view of what we had said before the application to amend will be granted not by way of substitution but as amended Statement of claim principally for the purpose of finally determining the matter in controversy in the case. We shall therefore allow the appeal for the reasons we have stated. We therefore make the following orders:
“(1) That the application for filing the amended Statement of claim should be granted.
(2) That the Court below do ,carry out this consequential orders in respect thereof.
(3) That the High Court Ikeja. subject to any other commitment give an early hearing date for the parties.
(4) That no costs should be awarded to the appellant.
And this shall be the order of this court.
Other Citation: (1974) LCN/1973(SC)
