3PLR – FADAYOMI V. MERCURY ASSURANCE CO. LTD
POLICY, PRACTICE & PUBLISHING LAW REPORTS, 3PLR
FADAYOMI
V.
MERCURY ASSURANCE CO. LTD
HIGH COURT LAGOS STATE
FEBRUARY 18, 19721
SUIT LD/III/71
3PLR/1972/52 (HC)
BEFORE:
Odesanya J
MAIN ISSUES
INSURANCE AND REINSURANCE LAW:- Insurer and insured—Claim for loss incurred as result of accident – Oral agreement for premium payable – How treated
PRACTICE AND PROCEDURE – PLEADINGS:- Application to amend statement of claim after closing statements and adjournment of case for judgment – Substitution of new paragraph for old and addition of new paragraphs – Objection raised by defendants on grounds of inconvenience and prejudice –Principles to be followed by court
REPRESENTATION
Olaitan for the plaintiff.
Osipitan for the defendants.
MAIN JUDGMENT
ODESANYA J.:
The plaintiff claims against the defendant the sum of £1,330 being loss suffered on August 25, 1967, in an accident involving plaintiff’s vehicle LN 1372 insured with the defendant-company by virtue of policy No. MB/CV/20229/L dated April 10, 1967. After the close of evidence on both sides and the adjournment of the suit for judgment the plaintiff brought an application for leave to amend the statement of claim:
(1) by adding to the end of paragraph 7 thereof the words: “ on the ground of non-payment of full instalments of the premium “;
(2) by substituting for paragraph 8 a new paragraph 8 which reads:
“The plaintiff avers that there was an oral agreement entered into by the plaintiff and the defendant through the latter’s General Manager Mr. Igandan that the premium was to be spread over the entire year of the policy of insurance-one-half of the premium payable before the expiration of six months from December 1966 and the other half of the premium payable before the renewal date of the policy“;
(3) by adding a new paragraph numbered 9 and which paragraph reads:
“The plaintiff has fully complied with the arrangement referred to in paragraph 8 before the accident referred to in paragraph 4 above “;
(4) by adding a new paragraph numbered 11 and which reads:
“The plaintiff claims the sum of £1,330 being the sum assured under the policy of insurance.”
All the amendments are set out in an amended statement of claim exhibited to the affidavit filed in support of the plaintiff’s application.
The counsel for the defendant-company objects to the amendments. He submits:
(1) that paragraph 11 will necessitate the re-address of the court by parties’ counsel.
(2) that paragraph 8 is incomplete because the date when the oral agreement was entered into is not disclosed therein and the amendment would necessitate the filing of an amended statement of defence.
These counsel submissions would prejudice the defendant-company.
There is no doubt that the power to amend with which Order 33 of the Rules of Court invests a trial judge is general and extensive. Leave to amend may be granted at any stage of the proceedings as the Order provides. The suit was adjourned for judgment on January 19, 1971. The plaintiff delayed bringing the application until February 9, 1972, that is for three weeks after the adjournment. Whether this delay should defeat the application or not depends on the nature of the amendments and their effect on the parties’ case. The amendments however are based entirely on the evidence already before the court and on matters which have emerged as part of the issues between the parties. The plaintiff testified inter alia as follows:
“ I was asked to pay the premium by instalments, half of the premium within six months and the balance before the end of the year 1967.”
The defendant company’s general manager’s testimony in response to the plaintiff’s evidence set out above is as follows:
“ We allowed payment by instalments five instalments within six months from December 8, 1966. She paid first £40 and she was asked to pay the balance within six months. She agreed to pay within six months. She did not pay as agreed.”
Clearly the parties have joined issue on the collateral agreement relating to the method of paying the premium due on the policy.
In Akinkuowo v. Fafimoju [1965] N.M.L.R. 349 the Supreme Court held that the trial court in the case was right to allow an amendment which in effect raised no new issues but enabled the parties to make use of the evidence already given. The trial judge in that case gave effect to the English Practice Note in Loutfi v. C. Czarnikow [1952] 2 All E.R. 823. In short in the Practice Note is outlined the prescription for tackling an application for an amendment after the close of a case. It is this:
“ Unless there is very good ground and strong justification for so doing, the court should be reluctant to grant amendments of the pleadings after the close of the case but before judgment, even though it has been indicated in the course of the hearing that some amendment might be asked for.
Such an amendment may be allowed:
(i) where the matter involved has been raised in the course of the trial and counsel has addressed the court on it, since it will be merely incorporating in the pleadings that which has emerged in the course of the case as an issue between the parties;
(ii) where the fact the subject of the amendment has been referred to by counsel in opening and evidence about it has been given, since there has been sufficient indication in the course of the trial and in the evidence that it is a matter in controversy and the amendment will enable the court to arrive at the view, if it thinks fit, that what is pleaded is a correct interpretation of the facts.”
By these tests the amendments in the new paragraph 8 and in paragraph 9 must be and are allowed.
The amendments disclosed in paragraphs 7 and 1 I of the amended statement of claim do not prejudice the defendant and are in keeping with the evidence already led. In other words they bring the pleadings into line with the evidence.
The application therefore succeeds. Leave is granted to amend the statement of claim. The amended statement of claim will be filed and served on or before Monday, February 21, 1972. The counsel for the defendant will be allowed to recall the plaintiff for further cross-examination if he so wishes, and to amend the statement of defence. If the statement of defence is amended it should be filed as amended and should be delivered on or before Friday, February 25, 1972.
The plaintiff will pay the costs of the proceedings assessed at 15 guineas.
Plaintiffs.
