ADELEKE V. AWOLIYI & ANOR.

• Pages: 190-192

190

NIGERIAN SUPREME COURT CASES

[1962] N.S.C.C.

what had happened, and what his rights were, and that in the absence of such an

explanation justice has not been seen to be done.

In fairness to counsel it should be said that apart from this lapse he seems to

have done his best for the appellant, and we do not suggest that he was guilty of

any conscious dereliction of his duty to his client. That cannot alter the fact that

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by his unauthorised disclosure and his abstention from cross-examination he im-

plied that he himself doubted if the evidence to be given by his client was to be re-

li

ed on, and it was a miscarriage of justice, as understood in this country, that he

should have continued to represent the appellant without the appellant's being

aware that the counsel to whom he looked to present his case had, from his point

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of view, gone over to the enemy.

In the circumstances we consider that the conviction must be set aside, but there

was a substantial case against the appellant, and the order we make is that the

conviction is quashed and the appellant is to be retried before another Judge of

the Western Region High Court.

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Conviction quashed: Retrial

ordered.

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ADELEKE V. AWOLIYI & ANOR.

BELLO ADELEKE

V

1.

FALADE AWOLIYI

2.

AMUDA ODOFIN

FEDERAL SUPREME COURT

ADEMOLA,

C.J.F.

UNSWORTH,

F.J.

BAIRAMIAN,

F.J.

30th April, 1962.

APPELLANT

RESPONDENT

SUIT NO. FSC 162/1961

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Practice and Procedure - Pleadings - Accidental mistake in pleading - Curable

mistake - Judge's duty not to strike out pleading - Statement of claim -

Defect discovered by defence counsel - Counsel's duty to call court's attention

to defect.

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Parties - Joinder - Defendant's Application to join co-defendant - Service of

amended pleadings - Costs awarded against party for wasting Court's time.

ISSUES:

1.

Whether a court should strike out pleadings where there is a curable defect.

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2.

Does a defendant's counsel owe a duty to call the court's attention to any defect

in the pleadings of a plaintiff?

FACTS:

The appellant brought an action against the 1st respondent. He later filed a

statement of claim as well as a motion to join the 2nd respondent - Amusan Odofin.

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This was granted. In the course of proceedings, Amusan Odofin died, but the ap-

pellant did not amend the statement of claim. Later, the counsel for the respond-

ents applied ex-parte successfully for leave to present the son of the 2nd defendant

to be joined as a co- defendant. He did not at this or any other time call the court's