Legalpedia Citation: (2010) Legalpedia (SC) 81610
In the Supreme Court of Nigeria
Fri Mar 5, 2010
Suit Number: SC. 149/1998
CORAM
I. L. KUTIGI JUSTICE, SUPREME COURT
U. MOHAMMED JUSTICE, SUPREME COURT
U. A. KALGO JUSTICE, SUPREME COURT
FRANCIS FEDODE TABAI , JUSTICE, SUPREME COURT.
CHRISTOPHER MITCHELL CHUKWUMA-ENEH , JUSTICE, SUPREME COURT.
PARTIES
ARCH-BISHOP PETER YARIYOK JATAU (THE REGISTERED TRUSTEE OF THE ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH) APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The appellant applied to amend his writ and pleadings in the court of appeal to state the name of the proper parties to the suit which was granted. The court however struck out his suit on the ground that the proper parties where not before the court of trial. ?
HELD
The court held that the amendment dated back to the date the pleadings were filed and that the court could not have reviewed its final decision after giving same.
ISSUES
Whether in the circumstances of this appeal the Court of Appeal was right in holding that the amendment it earlier granted to amend the name of the appellant and also the record of proceedings raised a new point or a fresh issue which was not raised n the court below .Whether having granted the appellant leave to amend the name of the appellant also the record of proceedings, which amendment had retrospective effect, the Court of Appeal had the jurisdiction and competence to ignore or decline to give due legal effect to the said amendment when it allowed the appeal before it and proceeded to strike out the suit on the self same ground that same was not properly constituted..?
RATIONES DECIDENDI
AMENDMENT OF PLEADINGS DATES BACK TO THE DATE IT WAS FILED
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- U. A. KALGO, JSC.
POWER OF A COURT TO REVIEW ITS JUDGMENT
the exercise by the Court of Appeal of its discretion to grant the application for amendment, is a “decision” within the meaning of Section 277 (1) of 1979 Constitution applicable to this case…and that it cannot review or set it aside unless it is proved to be a nullity- U. A. KALGO, JSC.
FRESH ISSUES CANNOT BE RAISED ON APPEAL WITHOUT LEAVE OF COURT
It is now trite law that leave is required to file and argue any fresh point not canvassed in a lower court if it is to be considered in the appellate court and the court has a discretion to grant or refused such leave. Per U.A. Kalgo J.S.C.
FRESH ISSUES CANNOT BE RAISED ON APPEAL WITHOUT LEAVE OF COURT
It is now trite law that leave is required to file and argue any fresh point not canvassed in a lower court if it is to be considered in the appellate court and the court has a discretion to grant or refused such leave. Per U.A. Kalgo J.S.C.
AMENDMENT OF PLEADINGS DATES BACK TO THE DATE IT WAS FILED
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- U. A. KALGO, JSC.
POWER OF A COURT TO REVIEW ITS JUDGMENT
the exercise by the Court of Appeal of its discretion to grant the application for amendment, is a “decision” within the meaning of Section 277 (1) of 1979 Constitution applicable to this case…and that it cannot review or set it aside unless it is proved to be a nullity- U. A. KALGO, JSC.
CASES CITED
Enigbokan V. A.I.I. Co., Nig. Ltd (1994) 6 NWLR (pt. 348) 1 at 15-16, Warner V. Sampson (1959) 1 Q.B. 297 at 321Dike V. Aduba (2000) 3 NWLR (pt. 647) 1 at 10John Andy Sons & Co., Ltd V. N.C.R.I (1997) 3 NWLR (pt. 491) 1
STATUTES REFERRED TO
NONE