Suit in wrong name

Statement on Oath filed in support of a Claim or Defence is valid and operative even if the Claim or Defence is later amended without new oath filed.

Dunalin Inv. Ltd v. BGL Plc [2016] 18 NWLR (Pt. 1544) 262 at 326, paras. E-G, per Augie, JCA (as he then was):

“An amendment dates back to the date the document amended was filed, and the action continues as though the pleadings had been in the original form right from its original date… In this case, the appellant is not contesting the fact that the 1st respondent attached DW1’s witness statement on oath to its initial statement of defence, which it later amended, and applying the same logic, the statement on oath is still valid and operative, thus, its argument to the contrary is of no moment.”

Blogger’s Note:

While we support the above position, what is left to be said is that although the earlier statement on oath remains valid, the party who fails to file fresh oath to support the amended process stands the risk of not supplying enough evidence to support facts pleaded in the said amended process. It is trite that facts not supported by evidence are deemed abandoned. Conversely, evidence led to facts not pleaded goes to no issue. The only remedial step again (in the latter case) would be to apply for further amendment of the pleadings in order to bring evidence in line with pleadings. In the case of the former, an application may be brought to recall the witness. However, the courts are not often inclined to recall a witness already discharged.
(Visited 66 times, 1 visits today)