All posts by Stephen Azubuike

Stephen Azubuike is a Legal Practitioner, Consultant and Blogger. He is a Senior Associate working with Dr. Abiodun I. Layonu (SAN), FCIArb and is a key member of the Dispute Resolution and Commercial Law Practice Group at Layonu & Co. He obtained his Bachelor of Laws Degree (as an Elf/Total Scholar) from the University of Benin, graduating as one of the best students in his class. He further obtained a Master of Laws Degree from University of Lagos shortly after being called to the Nigerian Bar as a Solicitor and Advocate of the Supreme Court of Nigeria. In addition to his academic degrees, Stephen has certificate trainings in Mediation, Mediation Advocacy and Insolvency Practice. He is a published scholar and a seasoned advocate.

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.