Amendment can cure defective pleading.

Amendment can cure a defective pleading signed in the name of a law firm.

Okunade v. Olawale [2014] 10 NWLR (Pt. 1415) 207 at 245, paras. A-D, per Owoade, JCA:

“At the same time as in the instant case, it cannot be said that an amended pleading does not cure a defective pleading when there is otherwise no jurisdictional issue at stake. 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 issues 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. Thus, it 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 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.”

Blogger’s Note:

In the above case (a land dispute case), the Respondent filed a Statement of Defence and Counter-claim which was signed in the name of a law firm. This process was subsequently amended severally by which time it was properly signed. The Appellant argued at the Court of Appeal that the amendment cannot cure the defect in the original Statement of Defence and Counter-claim, relying on Okafor v. Nweke [2007] 10 NWLR (Pt. 1043) 521 and Oketade v. Adewumi [2010] 8 NWLR (Pt. 1195) 63. The Court of Appeal disagreed and sustained the Respondent’s contention that the said pleading, having been amended, was thereby cured of the defect. Owoade, JCA brilliantly distinguished the cases of Okafor v. Nweke and Oketade v. Adewunmi when he held as follows: “Also, one would notice a tone of disciplinary principle in relation to the careless attitude of legal practitioners in the case of Okafor & Ors. v. Nweke & Ors. However, by some coincidence the facts and circumstances of those cases are such that the incompetence of the processes so filed rendered the ignition of the jurisdiction of the court impossible. That is not so in the instant case. The present case concerns an amended statement of defence and counter-claim of the respondent.” (See page 243, para. G of the report).

The Court of Appeal further held that one set of facts as in the cases of Nweke and Adewumi, may constitute fundamental irregularity as to declare the processes void ab initio, while some other set of facts as in the instant case may constitute mere irregularity as to declare the processes voidable. I agree.

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4 thoughts on “Amendment can cure a defective pleading signed in the name of a law firm.”

  1. I agree with the above position to the extent only that such an amendment cannot save an originating process e.g. a writ, which is considered to be dead on arrival.
    Let me also share an experience with you on this issue. We commenced an action at the federal high court wherein the defendant counter-claimed. The matter was later withdrawn against the defendant leaving only the defence and counter claim. As the federal high court lacked the jurisdiction to determine the counter claim, it was transferred to the state high court for determination. At the state high court, I raised the issue of jurisdiction as the statement of defence and counter claim(which I argued was the originating process before the court) was not signed by a legal practitioner. The court ruled in my favour and dismissed the application for amendment on the ground that at the time the amendment was sought, there was nothing before the court to ignite it’s jurisdiction.
    I really prayed for the opportunity to hear the opinion of the appellate courts on the matter but unfortunately, the ruling was not appealed.

    1. Hi Edith, I wish the ruling was appealed. In my view, the statement of defence and counter claim is not an originating process even in the circumstances. The originating process remains the writ by which the suit was initiated at the Federal High Court. The fact that there was a subsequent transfer of the suit for the sole determination of the counter-claim does not render the statement of defence and counter-claim the originating process. The statement of defence and counter-claim did not pose a jurisdictional question and the Court ought to have allowed the amendment.

  2. Meanwhile,I want to thank you for your hard work,the fruit of which we’ll enjoy with you.

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