Pleadings

• Pages: 767-820

PLEADINGS

(1) ADMISSION IN PLEADINGS

1901. Do admitted facts need evidence?

“Paragraph 12 of the statement of claim alleged that the defendant “wrongfully and

maliciously wrote and published” the libellous words complained of and the respon-

dent failed to deny specifically that they published the letter complained of. They in

fact, admitted writing the letter but alleged that it was written on a privileged occa-

sion. The reason given for the allegation that there was no publication in law, because

the envelope containing the letter was marked “confidential” and addressed to a

public officer, is erroneous and does not amount to a denial of publication. It is, in fact,

an indirect admission. In the circumstances, the appellant was justified on the state of

the pleadings in not calling evidence as to publication.” I agree with the appellant’s

learned counsel’s view that the trial Judge erred in his findings on the question of

publication.” - Per Jibowu, F.J. in Economides v. Thomopulos Ltd. Suit No. WACA

76/1955; (1956) 1 N.S.C.C. 9 at 12.

1902. Negligence under unrebutted evidence of res ipsa loquitor is enough

to ground liability.

“In the case in hand, the appellant relied not only on his undenied pleadings but also

on his unrebutted and unexplained evidence showing that the 2nd respondent was

prima facie negligent under the doctrine of res ipsa loquitor by driving his motor

vehicle in such a manner that it collided with the bridge and thereafter plunged into

the river on the wrong side of the road. It is our view that had the learned Judge

adverted his mind to the pleadings and the evidence and had assessed it correctly, he

ought to have found the 2nd respondent liable for negligence. - Per Bello, J.S.C. in

Ajibade v. Mayowa Suit No. S.C. 183/1976; (1978) 11 N.S.C.C. 458 at 461.

1903. Plaintiff should not be deprived of judgment on an admitted claim.

(1) “The real question raised by this appeal, therefore, is whether a plaintiff whose

claim was admitted on the pleadings and evidence before the Court should go without

judgment of, or relief or remedy from, the Court. In our view, there can be no justifi-

cation for depriving a plaintiff of judgment on an admitted claim fully supported by the

evidence. It is therefore convenient at this stage to state and examine the facts.” -

Per Obaseki, J.S.C. in Olubode v. Oyesina Suit No. S.C. 111/1975; (1977) 11 N.S.C.C.

286 at 289.

(2) “A fact admitted by the defendant in his pleading should be taken as established

and should form one of the agreed facts of the case. (See Chief Okparaeke and

others v. Obidike Egbuonu and Others (1941) 7 W.A.C.A. 53 at 55).” - Per

Obaseki, J.S.C. in Olubode v. Oyesina Suit No. S.C. 111/1975; (1977) 11 N.S.C.C.

286 at 290.

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Admission in pleadings Paras. 1901-1903

Paras. 1904-1906 Vol. 16: PLEADINGS 768

(2) AMENDMENT OF COURT PROCEDURE

1904. Amendment of Court process.

“It is also settled law that an amendment is not only permissible during the trial of a

case but can also be done even on appeal depending on circumstances, and thus for

example to bring the pleadings in line with the evidence on record. See Bale Adegbaiye

& Anor. v. Josiah. R. Akinrinsi & Anor. (1974) 10 S.C. 123 cited with approval in

Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 N.W.L.R.

(Pt. 166) 136.” - Per Oduwole, J.C.A. in Ayinla v. Adisa Suit No. CA/K/225/90;

(1992) 7 N.W.L.R. (Pt. 255) 566 at 573.

1905. Amendment of pleadings.

“It is true a party can amend his pleading up to the close of the case and before the

judgment.” - Per Belgore, J.S.C. in Umeojiako v. Ezenamuo (1991) 21 N.S.C.C.

(Pt.1) 169 at 176; Suit No. S.C. 81/1989; (1990) 1 N.W.L.R. (Pt. 126) 253 at 266.

(3) AMENDMENT OF PLEADING

1906. Amendment of pleading.

(1) “It is a well settled law that an amendment of pleadings should be allowed unless

(1) It will entail injustice to the respondent; (2) The applicant is acting mala fide; (see

Tildesley v. Harper (1878) 10 Ch. D. 393 at p. 396 (3) By his blunder, the applicant

has done some injury to the respondent which cannot be compensated by costs or

otherwise; (see Tildesley’s case (supra); Oguntimehin v. Gubere (1964) 1 All N.L.R.

176 at p. 179; and Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All N. L.R. 409).” -

Per Madarikan, J.S.C. in Ojah v. Ogboni Suit No. S.C. 3221/1975; (1976) 10

N.S.C.C. 244 at 247.

(2) “Speaking about the effect of an amendment of pleadings, Hudson, L. J. ob-

served in Warner v. Sampson & Anor. (1959) 1 Q.B. 297 at p. 321 thus: - “I do not

think that this amendment can be ignored. Once pleadings are amended, what stood

before amendment is no longer material before the Court and no longer defines the

issues to be tried. Here the defendant has obtained leave to amend, and there has

been no appeal against that order; and, whatever may have taken place at the hear-

ing of the application to amend, the Court must, I conceive, regard the pleadings as

they stand, the purpose of amendment being to determine the real question in contro-

versy between the parties.” Manifestly therefore, the plaintiffs amended statement

of claim filed on the 24th April, 1971, spoke in effect as from the date of the original

statement of claim and it should be treated as such once the amendment was ef-

fected by leave or order of the Court.” - Per Coker, J.S.C. in Rotimi v. Macgregor

Suit No. S.C. 112/1970; (1974) 9 N.S.C.C. 542 at 552.

1907. Amendment of pleading supersedes claim on writ.

“The amendment made being one merely to bring the pleadings into line with evi-

dence already given was clearly within the competence of the learned trial Judge.

Such an amendment to the pleadings would supersede the claim on the writ. See

Udechukwu v. Okwuka 1 F.S.C. p. 70.” - Per Irikefe, J.S.C. in A.C.B. Ltd. v.

Ewarami (1978) 4 S.C. 99 at 107;( Suit No. S.C. 428/1975; 1978) 11 N.S.C.C. 269

at 273.

1908. Amendment of pleadings should be as justice and fair play require.

“The correct principle for the guidance of a Court in the exercise of its discretionary

power under the order was fully considered by this Court in Chief Ojah & Others v.

Chief Eyo Ogboni & Others (1976) 4 S.C. 69. It was stated in that case that an

amendment of pleading for the purpose of determining the real questions in contro-

versy between the parties ought to be allowed unless such amendment will entail

injustice or surprise or embarrassment to the other party or the applicant is acting

mala fide or by his blunder the applicant has done some injury to the respondent

which cannot be compensated by costs or otherwise. In other words, the discretion

ought to be exercised so as to do what justice and fair play may require in the particu-

lar case.” - Per Bello, J.S.C. in Okafor v. Ikeanyi Suit No. S.C. 133/1976; (1979) 12

N.S.C.C. 43 at 47 - 48.

1909. Amendment of pleadings where it secures substantial justice.

“In Shomade and Anor. v. Ogunbiyi and Ors. 3 W.A.C.A. 48, cited by learned

counsel for the respondent, it was held, in a majority decision of the West African

Court of Appeal, that if substantial justice can be secured by an amendment of plead-

ings, such amendment should be allowed. The expression “pleadings” is defined in

Section 2 of the relevant High Court Law (Cap. 49) and obviously includes a

counter-claim. Further, rule 14 of Order XXXII of the relevant rule of Court relating

to pleadings stipulates the procedure to be followed when any defendant seeks to

rely upon any facts, as supporting a right of set-off or counter-claim.” - Per Alexander,

C.J.N. in Bata Nigeria (sales) L.t.d. v. Adamu Suit No. S.C. 59/1975; (1976) 10

N.S.C.C. 340 at 344.

1910. Amendment of statement of claim.

“Next, I desire to refer to the amendment of the statement of claim which was

allowed by this Court during the hearing of this appeal. It is undeniable that, in the

original form, the statement of claim disclosed no cause of action and the action could

have been disposed of in the Court below on that basis. My agreement with the other

members of Court to allow the amendment was given with some reluctance and

misgiving because first, the application for amendment was made very late in the

769 Amendment of pleadings Paras. 1907-1910