Judgment
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment) : Introduction This interlocutory appeal is an offshoot of two consolidated suits pending before the High Court of Lagos State which granted leave to the Respondents (qua defendants) to amend their joint statements of defence in a considered ruling delivered by Kasali, J. on 31/5/17. The purpose of the amendment was to enable the Respondents subjoin a counterclaim to their statement of defence after the Appellant (qua claimant) had closed his case.
The Appellant could not see his way clear that the lower Court properly exercised its discretion in granting leave to amend in the manner and at the time it did. He consequently lodged the present appeal vide a Notice of Appeal filed out of time on 23/11/17, albeit with the leave of Court granted on 22/11/17. The ruling appealed against lies at pp. 359 – 369 of the records, whilst the Notice of Appeal is copied at pp. 406 – 409 thereof.
Issues for determination The three (3) issues distilled for determination in the Amended Appellant’s Brief of Argument filed on 22/2/18 (which were adopted without modification in the Respondent’s Brief filed on 28/8/18) are: (i) Whether the Defendants/Respondents can amend their Joint Statement of Defence by incorporating a Counter-Claim after the Claimant/Appellant has closed his case? (ii) Whether the Defendants/Respondents can by an amendment to their Joint Statement of Defence incorporate a Counter-Claim which raises issues based on facts that arose after the issue of the Writ of Summons in these Consolidate suits? (iii) Whether the Defendants/Respondents in these consolidated suits have a competent Statement of Defence in these suits?
Appellant’s submission The Appellant referred to Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012 (in force at all material times) and recited the principles governing the grant or refusal of amendment as enunciated in a litany of decided cases (notably: OKEOWO v MIGLIORE (1979) 11 SC 139, STATE v GWONTO (1983) SCNLR 142, OJOGBORO v KUKU [1986] 3 NWLR (PT 31) 697 and MAERSK LINES v ADDIDE INVESTMENTS LTD [2002] NWLR (PT 778) 317, AMADI v THOMAS APLIN & CO LTD (1970) 1 ALL NLR 409 and AKANINWO v NSIRIM [2008] 9 NWLR (PT 1093) 439) and contended that the implication of granting leave to amend after the close of the claimant’s case on 18/6/15 is that “pleadings in the consolidated suit would have to be reopened for the claimant to file a defence to the defendant’s counterclaim, and the claimant will have to reopen his case to accommodate his evidence in defence of the counterclaim”.
