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RULING ON MOTION ON NOTICE FOR AN ORDER TO FURTHER AMEND THE AMENDED STATEMENT OF CLAIM Plaintiff on the 17/2/2023 filed the instant application and prayed the Court for leave to further amend its Amended Writ of Summons and Statement of Claim to enable Plaintiff plead a Deed of Variation covering its land, which deed is dated May 25, 2015. The 1st Defendant has opposed the instant application on the main ground that since the Plaintiff instituted this action no mention has been made of this Deed of Variation dated 25th May, 2015 and granting this application would enable the Plaintiff reconstruct its case into an entirely new one and change the nature of the present action (paragraphs 9, 10, 11 – 13 of 1st Defendant Affidavit in Opposition dated 1/3/2023). 1st Defendant made the further point that as the Court had already granted an Injunction in respect of the prior Indenture exhibited by the Plaintiff and this order had been appealed against by 2nd Defendant, this Court is functus officio with respect to the extent of the parties respective lands.
That the Deed of Variation sought to be introduced is brought in bad faith and an attempt to overreach the orders of the Court for a composite plan to be drawn with the respective site plans of the parties.
Order 16 rule 5 (1) of the High Court (Civil Procedure) Rules, 2004 (CI 47) states that: (1) Subject to Order 4 rules 5 and 6 and to the following provisions of this rule, the Court may at any stage of the proceedings upon an application by the plaintiff or any other party grant leave to(a) the plaintiff to amend the plaintiff’s writ; or(b) any party to amend the party’s pleading; on such terms as to costs or otherwise as may be just and in such manner as it may direct.
A careful scrutiny of this Deed of Variation shows it is dated 25/5/2015 and was stamped on 26/6/2015 years before the commencement of the suit on 10/2/2022. This Deed of Variation also increases the extent of Plaintiff’s land from 0. 34 acres in the 2003 Indenture to 0. 549 acre in the Deed of Variation.
This document prima facie looks authentic and it is not at this stage the Court has to authenticate same.
To ensure that all matters in issue are fully adjudicated upon, the Court is of the opinion that this Application should be granted and hereby does so accordingly.
Corresponding leave is also granted to the Defendants to amend their Statement of Claim upon being served with the further amended Statement of Claim.
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