In the case of Ojah v. Ogboni (1976) 1 NWLR 95 at 99 it was held that an amendment of pleadings should be allowed unless:-
a) It will entail injustice to the respondent:
b). The applicant is acting malafide and
c). By his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise.
The general principle of law is well settled that an amendment of pleadings can be made at any time, before judgment. However, and notwithstanding the wide latitude, the intention is not to leave the consideration open-ended and without proper control so as to create a flood gate of an abuse of discretion. The case of Imonikhe v. A. G. Bendel State (1992) 7 SCNJ 197 at 207-208 per Nnaemeka – Agu, JSC is relevant wherein this Court said:-
"Although, by the rules, an amendment to the pleadings can be made at any stage of the proceedings, different considerations apply depending on whether the amendment is being sought before or after the close of the evidence by the parties. Before the close of evidence, such amendments are allowed to make such evidence as may be called admissible, as evidence on an issue which was not pleaded or a claim not on the record is strictly admissible. But once the calling of evidence has been concluded, any amendment of the pleading or claim can be justified or allowed only on the premise that evidence in support of it is already on record, so that it is necessary and in the interest of justice to allow the amendment in order to make the pleadings or the claim accord with evidence already on record. The rationale of it is that such amendment should be allowed to enable the Court to use the evidence already on record to settle the real issue in controversy between the parties."
Relevant to this appeal is to determine the nature of the amendment sought for. This I say, because the duty of a Court as an arbiter is to act for the benefit of all parties. It follows therefore that an amendment which will serve the interest of the justice of the case is beneficial to all parties and should be allowed and granted.
The caveat however is also true that if an amendment is sought either in bad faith, for purpose of undermining the case of the opponent or is simply done with the intention of giving the party seeking same to have a second bite at the cherry, then such should not be allowed.
Usually there are two stages in proceedings when a party can apply to amend his pleading and in each of the stages different considerations apply.
Before trial an application to amend or add to particulars would be granted if made a reasonable time before trial but would not be allowed if the amendment would introduce a new cause of action. Before the close of evidence and after the close of evidence amendments would be allowed if evidence on it is already on record. An amendment would be allowed to make pleadings fall in line with evidence already on record. The reasoning being that the amendment should be allowed so that the Court would be at liberty to use evidence already on record to resolve the real issue in dispute.
Applications for amendment of pleadings would not be allowed where if granted it would entail injustice to the other party, where the applicant is acting in bad faith or where the applicant has done some injury by his blunder which cannot be compensated by costs. See Ojah & Ors v Ogboni & Ors (1976) 10 NSCC P.244.
in a criminal case at any time before Judgment is given in the case. Section 164 (1) and (4) of the same Criminal Procedure Act, further stipulates as follows-
(1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 of Section 163 of this Act, the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.
(4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purposes of all proceedings in connection therewith as having been filed in the amended form.
As Karibi-Whyte, JSC, stated in Attah V. State (supra), Subsection (4) renders an amendment retrospective to the date of filing of a charge. Essentially, "the Amended Charge shall replace the original Charge and shall be read and explained to the Accused as the new Charge" – See Uguru V. State (2002) 9 NWLR (pt. 771) 90 [per Kalgo, JSC].
In Uguru V. State (supra), this Court explained that Section 163 of the Criminal Procedure Act does not give any condition precedent to its application but ensures that the Amended charge be read out and explained to the Accused person. Kalgo, JSC, further observed-
This means that whenever the prosecution decides to amend the charge already before the Court, it can proceed to do so. It then applies to the Court to accept the amendment pursuant to the provisions of Section 163 (ibid) and the Court after hearing the Party, may or may not accept or allow the amendment. If it allows the amendment, the amended charge shall replace the original charge and shall be read and explained to the accused as the new charge. If it rejects the charge, the original charge remains. This is what obtains in criminal matters pertaining to amendment of charges generally.
PML (NIGERIA)
Finally on this issue, it is important to consider the effect of the amendment on the Enugu Charge. The FHC Benin stated clearly that "where a charge is amended, the former one seizes to govern the proceedings and remains a nullity and of no useful purpose"; and in affirming the decision of FHC Benin, the Court of Appeal observed-
"The position of the law – – remains the same in the instant situation where the amended Charge accepted on 14/10/2008 was not formally withdrawn but was by force of law no longer in existence consequent to the filing of another Charge by the Prosecutor on 18/12/2008.
The Respondent, citing Section 164 (4) of the Criminal Procedure Act, Attah V. State (1993) 7 NWLR (Pt.305) 257 and FRN V. Adewunmi (2007) 10 NWLR (Pt.1042)399submitted that the said Charge will be deemed to have been filed in the same form as the Amended Charge filed on 18/12/2008. It also argued as follows at page 18 of its Brief –
The effect of the amendment or the substitution of the charge of 18/12/2008 by FHC Enugu in Charge No: FHC/EN/6C/2008 was to relate back to the date that the first Charge was filed and the original charge of 22/1/2008 and that of 13/10/2008 are deemed not to be in existence. The Appellant herein and the other Accused Persons cannot, therefore, claim that they were charged under those original Charges and the Amended Charge of 13/10/2008. The effect of the amendment of 18/12/2008 is to render all previous charges irrelevant.
I agree entirely; Section 163 of the Criminal Procedure Act empowers a Court to alter, amend or add to any charge
PML (NIGERIA)
It must however be noted that where evidence has been led in respect of facts not pleaded, a party is entitled to apply to the Court for leave to amend his pleadings to bring them in line with the evidence led.
Amendment generally is to prevent the justice of the case from being defeated or delayed by formal slips which may arise from the inadvertence of counsel. See: Ehidimhen Vs Musa (2000) 4 SC (Pt.II) 186 @ 187; ACB Ltd Vs Ewarami (1978) ALL NLR 257. An amendment of pleadings will be granted so long as it does not entail injustice to the other side.
On the issue of amendment.....it is the law that an incompetent process cannot be amended".
See also the Supreme Court decision in Nigeria Army v Samuel (2013) 14 NWLR (Pt. 1375) 466 at 483 (Para E – H), where the Court per Onnoghen JSC (as he then was) held thus:
"N. O. O. Oke & Co. is not a legal practitioner registered in Nigeria to practice law and thereby clothed with the powers to sign/frank legal documents and file same in the Court of law, it is also not a legal person known to law which makes its position worse...........
The lack of legal personality is a fundamental defect which cannot be cured by an amendment. It is a defect that goes to the root of the proceedings and renders same void ab initio. In the eyes of the law, the notice of appeal in this case did not exist and can therefore not be accorded validity by an amendment. What is void is void."
Similarly, at page 486, F- G of the above case, His Lordship Ogunbiyi, JSC in his respect held thus:
"The Originating notice of appeal as the initiating process must be competent for any subsequent amendment to sustain. To hold otherwise and as contended by the respondent's counsel is to put something on nothing and which would surely crumble. The amendment has no foundation to stand thereon".
Akaahs JSC in the same SLB Consortium Ltd v NNPC in dealing on what should obtain upon an amendment of the defective notice of appeal stated thus:
"The Originating process i.e. the notice of appeal (which was purportedly amended) upon which the lower Court allowed the appeal from the General Court Martial was fundamentally defective which could not be cured by an amendment. Consequently the judgment of the lower Court predicated on an invalid notice of appeal is a nullity".
Dickson Ogunseinde Virya Farms Limited v. Societe Generale Bank Limited & Ors LGC(9/2/2018) J
It is trite law, that parties are at liberty to amend their pleadings, whenever it is appropriate to do so in order to bring into focus the real issues in controversy for the determination of the Court. In other words, where a proposed amendment raises issues in controversy which are already in evidence, the Court will in the circumstance allow such an amendment. This appears the state of the law. See, CGG (Nig) Ltd vs. idorenyin (2015) 13 NWLR (pt. 1475) 149, and Obijuru vs. Ozims (1985) 2 NWLR (pt. 6) 167.
It is equally the position of the law rightly argued that an amendment, which can be made at any stage of the proceedings, once made takes effect from the commencement of the action or when the amended process was initially filed. See, NSE vs. Katchy (2017) 7 NWLR (pt. 1564) (CA), Okoye vs. Okonkwo (2006) LPELR – 11785 (CA).
In the same volume, it has been held severally that joining a party to an action is an act of uniting to the action all persons who have the same rights or against whom rights are claimed in order to be bound by the result of the action. See, Uku vs. Okumagba (1974) 3SC 35, Jadesimi vs. Ekotie- Eboh (1985) 2NWLR (pt. 10) 909. The lower Court by paragraph 9 of the amended statement of claim of the view that the paragraph was in support of the assertion that 1st defendant had offered to pay the 2nd Respondent’s outstanding debt. PER BARKA, J.C.A.
The position of the law on amendment of process or processes of Court in a suit or action is very clear and settled to the effect that once an amendment is made or granted by the Court seised of the matter to any process, the earlier processes ceased to be in existence and no longer defines the issues between the parties to the action or suit.
Therefore, the position in the Appellant’s case herein is that upon the filing of the aforesaid Further and Better Amended Statement of Claim by the Appellants on 8/3/2018, the Amended Statement of Claim filed on 8/5/2017 ceased to be the pleading defining the issues in the Appellant’s suit. The Further and Better Amended Statement of Claim filed on 8/3/2018 replaced the Amended Statement of Claim filed on 8/5/2017 and the extant Further and Better Amended Statement of Claim related back to the date the action was first filed in Court. See: 1.JOHN OFORISHE V.
NIGERIAN GAS COMPANY LTD (2018) 2 NWLR (PART 1602) 35 at 56 G-H to 57 A per RHODES- VIVOUR JSC said: “After amendment of pleadings by both sides, the final pleadings were the amended statement of claim filed on 3rd May 1995 and the further amended statement of defence filed on 7th June, 1995. The purpose of amending pleadings is to prevent the Court from giving judgment in ignorance of facts that should be known before rights are finally decided. Put in another way amendments to pleadings are ultimately to enable the Court decide the real issues in controversy between the parties.
The position of the law is that the amendment relates to the original pleadings and all amendments before the final amendments seize to be pleadings to be relied on in the trial. They remain worthless. See Rotimi Ors v. Mc Gregor (1974) II SC p. 133; C.G.D.G. (Nig) Ltd Idorenyin (2015) 5-6 SC (Pt. II) p. 1; (2015) 8 NWLR (Pt.1475) 149.” PER IGE, J.C.A.
Having considered the arguments of the parties for and against the issue of whether the trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of the Rivers State High Court, 2010, I am inclined towards the argument of the Appellants that the law is trite that a party can validly amend his process before a Court at any time before judgment.
That the Court would ordinarily grant such an amendment where it would allow the Court to effectively decide the dispute between the parties; that the amendment can even be made at appeal level, even at the Supreme Court. See Abah vs. Jabusco (2008) 3 NWLR (Pt. 1065) 526 AT 545. PER ABDULLAHI, J.C.A.
The parties agreed that the extant pleading of the respondent upon which evidence was adduced in support of his case and upon which the Court based its judgment is the Further Amended Statement of Claim which was accompanied by an amended statement on oath of late Osademe Okoro deposed to on 9/6/2016. It is a settled principle of law that once a Court process is duly amended by the order of Court, what stood before the amendment is no longer material before the Court and no longer defines the issues to be tried before the Court. See NAGOGO V.
CPC & ORS (2012) LPELR-15521(SC) AT 24-26(B-A), (2013) 2 NWLR (PT.1339) 448, OFORISHE V. NIGERIAN GAS CO. LTD (2017) LPELR-42766(SC) AT 16-17 (E-B), (2018) 2 NWLR (PT. 1602) 35. The amendment of late Osademe Okoro’s statement on oath is akin to amendment of pleadings or any other Court process. See REV. KING v. STATE (2016) LPELR-40046(SC) AT 37-38 (E-A), (2016) 6 NWLR (Pt. 1509) 529. PER BOLAJI-YUSUFF, J.C.A.
The settled position of the law is that the effect of the amendment of a process is that the amended process can no longer be relied on or referred to in the proceedings. It ceases to be a valid and relevant process in the proceedings. In Jatau v. Ahmed & Ors (2003) LPELR-1597(SC); this Court held that: “It is now well settled and trite law that any amendment of the pleadings in a case, made or ordered at any stage of the proceedings before judgment, or even made in an appeal, dates back to the date when the pleadings were originally filed.
This means that “once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried”. Also, in Afribank Nig Plc v. Akwara (2006) 5 NWLR (Pt. 974) 619 at 640, where the Appellant applied for and was granted leave to amend a notice of appeal and granted six weeks to file the amended notice of appeal but failed to do so, this Court held that the effect of applying for and obtaining an order to amend an existing notice of appeal is to vacate the notice of appeal and render it non-existent.
The Court held further that the consequence of the failure of the Appellant to file its amended notice of appeal within six weeks as ordered by it is that there is no competent appeal before the Court, the initial notice having ceased to exist upon the grant of leave to amend. Because once a process is amended, the amendment relates back to the date of the document amended, and what, stood before the amendment is no longer material before the Court and no longer defines the issues to be tried. ABDU ABOKI, J.S.C.
This however, does not in any way imply that the amended processes are non-existent. In Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 170 @ 186; (1999) LPELR 224 SC, this Court stated as follows: – “There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendments are no longer material before the Court and no longer defines the issues to be tried before the Court. See Warner v. Sampson (1959) 1 Q.B. 297. This is as far as this proposition of law goes.
It does not and has not laid down any such principle that an original pleading which has been duly amended by an Order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law established is that such original pleading which has been duly amended is no longer material before the Court in the sense that it no longer determines or defines the live issue to be tried before the Court, not that it no longer exists. It does certainly exist and is before the Court.
It is however totally immaterial in the determination of the issues to be tried in the proceedings. It thus cannot be considered as the basis of one’s case in any action. Nor may a Court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the Suit. The issues to be tried will depend on the state of the final or amended pleadings. See also: Nagogo v. C.P.C & Ors (2012) LPELR-15521(SC). ABDU ABOKI, J.S.C.
It is settled law that you cannot amend a defective document such as a notice of appeal so as to infuse life into it. In other words, a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one, which in the eyes of the law is non-existent or dead. See: Awhinawhi Vs Oteri (1984) 5 SC 38; Atuyeye vs Ashamu (1987) 1 SC 333 at 358; (1987) 1 NWLR (Pt.49) 287.” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The law is settled that an appeal is incompetent by reason of its being invalid. An appeal that is void ab initio cannot be regularized. It cannot be saved by a purported amendment that is a sham as the instant appeal is, Aderibigbe v Abidoye [2009] LPELR-140 (SC); Atuyeye v Ashamu [1987] 1 NWLR (pt. 49) 267; Nsirim v Nsirim (supra). Both the original and purported amended notice of appeal have, each, a common fundamental feature of deficiency. PER CHIMA CENTUS NWEZE, J.S.C.
The aim of an amendment is to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel, and the Courts have through the years taken a stance that however negligent or careless the slip may have been or however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate injustice on the adverse party. See ADEKEYE v AKIN-OLUGBADE supra. PER AFFEN, J.C.A.
A conspectus of decided cases reveals a general inclination or leaning by the Courts to grant an amendment save in situations where: (i) the amendment sought will occasion injustice to the other party; (ii) the applicant is acting mala fide; or (iii) the applicant has by his blunder done some injury to the respondent which cannot be compensated by costs or otherwise.
See OJAH & ORS v OGBONI & ORS (1976) 4 SC 69, (1976) 1 NMLR 95 at 99, OKAFOR v IKEANYI (1979) 3 – 4 SC 99 at 106, OKEOWO v MIGLIORE (1979) 11 SC 138 at 197 & 199 – 200, ADETUTU v ADEROHUNMU (1984) 1 SCNLR 515, [1984] NSCC 389, KODE v YESUFU [2001] 4 NWLR (PT 703) 392, AJAKAIYE v ADEDEJI [1990] 7 NWLR (PT 161) 192 and ADELAJA v ALADE [1994] 7 NWLR (PT. 358) 537. PER AFFEN, J.C.A.
Crucially, an amendment may be sought and granted at the close of the plaintiff’s case [see OKOLO v NWAMU (1973) 2 SC 59 at 68], and even if it is in consequence of an objection raised by the adverse party. See ITA v DADZIE [2000] 4 NWLR (PT 652) 168 at 181 (CA).
In an application for amendment of pleadings, the Court will take into consideration a number of factors, including: (a) the attitude of the parties in relation to the amendment; (b) the nature of the amendment sought in relation to the suit; (c) the question(s) in controversy; and (d) the time when the amendment is sought. See ALSTHOM S. A. v SARAKI [2000] 14 NWLR (PT 687) 415. PER AFFEN, J.C.A.
The law is well settled that upon amendment of the statement of claim, the defendant is at liberty to amend his statement of defence in so far as is necessary to meet the facts introduced by the amendment. Failure to amend will leave the Respondent with his original statement of defence. See the case of Mobil Oil (Nig.) Plc v. IAL 36 INC (2000) 6 NWLR (Pt. 659) 146. In the instant case, the 1st Respondent amended his claim after the Court allowed the leave sought for the amendment. The amendment then gave the Court the opportunity to determine the real controversy between the parties.
There are no flaws in the trial Court’s decision to allow the 1st Respondent the leave to amend his statement of claim. PER ADAH, J.C.A.
The settled position of the law is that amendments date back to the date of inception or institution of the action in the Court. See the cases of AGBABIAKA vs. SAIBU (Supra); NWOKORO vs. ONUMA (Supra) cited by learned Counsel for the Respondent. See the case of REGISTERED TRUSTEES OF THE AIRLINES OPERATORS OF NIGERIA vs. NANA (2014) LPELR- 22372 SC, where the apex Court per OKORO, JSC had this to say on the subject; “The law is settled that once an amendment is granted, what stood before the amendment is no longer material before the Court.
See Katto Vs CBN (1999) 6 NWLR (Pt.607) 390 AT 412 D – E, Rotimi Vs. MacGregor (1974) 11 SC 133 AT 152. It is also settled law that an amendment takes effect from the date of the original document sought to be amended. Once the amendment is made, the action will continue as if the amendment had been inserted from the beginning. See A.G. Ekiti State Vs Adewumi & Anor (2002) 1 SC 47 AT 63 lines 31 – 41, Sneade vs. Watherton (1904) 1 K.B. 295 AT 297, Oguma Associated Companies (Nig.) Ltd. vs. I.B.W.A. (1988) 1 NWLR (Pt. 73) 658 AT 673 C – D.” PER OHO, J.CA.