CENTRE FOR PUBLIC INTEREST LAW (CEPIL) & RICHTER NII AMARFIO v. TEMA OIL REFINERY

OFOE, J.A:

The main consideration in this appeal is whether the trail judge’s refusal to grant the defendant’s application for leave to amend was a proper exercise of discretion. We would continue to refer to the parties as plaintiff and defendant as they were at the trial court. A summary of the case between the parties should serve a useful background to understanding this ruling. The plaintiff has sued the defendant for polluting the Chemu Lagoon by its continuous damping and spillage of hydro carbon substances into this lagoon. This act according to the plaintiff is causing the virtual death of life in the said lagoon. Not only has this contamination, which the plaintiffs consider a negligent act of the defendant, affected the rights of the people around this lagoon to a clean and healthy environment but also fishery, bird life and other wild life is running towards stagnation. Indeed the allegation continues that the socio- economic life of the inhabitants around the Lagoon has also been adversely affected. The plaintiff alleges that there has in the past been major oil spillage from the defendant’s premises due to negligent handling of equipment by the workers of the defendant or poor state of the equipment itself. Specifically on the 7th May 2007 the defendant once again spilled large quantities of oil into this lagoon causing massive pollution thereby. In summary this is the case of the plaintiff.

The defendant denied all these allegations of pollution as a result of negligence of its workers or poor state of its equipment. In fact their defence denied any spillage at all. This is the import of their defence. But they have a paragraph 5 which provides as follows

“In further answer to paragraphs 6 to 14 of the Statement of Claim. Defendant avers that occasional spills in insignificant quantities from the refinery cannot be the cause of the alleged level of pollution and annihilation of all life forms in the Chemu lagoon mentioned in the pleadings of the Plaintiffs”.

This pleading undoubtedly run counter to the main stream defence we have already alluded to. By this paragraph they are admitting that there had been spillage albeit occasional and in insignificant quantities. The defendant subsequently found this pleading in paragraph 5 inadvertent and sought to amend their defence by seeking to delete this particular paragraph and also add a general traverse. After hearing the parties on this application to amend the trial court refused the amendme