The Shell Petroleum Dev. Company Of Nig. Ltd. V. Akiri Marine Eng. Co. Ltd. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment)

After hearing arguments of learned counsel for the parties on an application to amend the amended statement of defence, the learned trial Judge on 14/2/99 delivered a ruling allowing the amendment sought in part and rejected the amendment in part. In doing so the learned, trial Judge stated thus:

“The court has thoroughly examined the submissions and the affidavit and counter affidavit and the court is of the view that there is some element of ambush in the amended statement of defence. For instance, the complete removal of paragraph 7 of the statement of defence which admitted plaintiff case. The court is of the view that this type of removal will be prejudicial to plaintiff subject to the retention of this paragraph all other amendments contained in the further amended statement of defence are hereby ordered as prayed. (Pages 51 line 24 and 52 lines 1-4).”

Dissatisfied with that part of the ruling refusing leave to amend the paragraph 7 of the amended statement of defence the Appellant appealed to this honourable court on 21/12/99 on two grounds of appeal quoted hereunder:-

GROUNDS OF APPEAL:

1) The learned trial Judge erred in law in refusing the Defendant’s application to amend its paragraph 7 of the Amended Statement of Defence at that stage when:

(a) hearing has not commenced and no witness has testified before him.

(b) the reasons given for the amendment were admitted by the Plaintiff and accepted by the learned trial Judge.

2). The learned trial Judge misdirected himself in law in holding that:

“The court is of the view that this amendment will be prejudicial to the Plaintiff” when learned trial Judge has not commenced any trial.

There is also one additional ground of appeal.

In his brief adopted and relied upon by his counsel Mr. Uwhubetine, the Appellant who was the defendant in the lower court distilled one Issue for determination thus:-

“Whether the learned trial Judge was right in refusing to grant the amendment as sought? Or Put another way.

Whether the learned trial Judge was right in granting the amendment sought subject to Retention of Paragraph 7 of the amended statement of defence sought to be amended”.