CORAM

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Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Binta Fatima Zubairu Justice of the Court of Appeal

Uwabunkeonye Onwosi Justice of the Court of Appeal

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PARTIES

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MR. ISHOLA SAMUEL ASHAMU APPELLANTS

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1. MRS. MARY OYEDOYIN BANDOH (NEE ASHAMU)

2. MRS. JADESOLA OYETORO LOKULO-SHODIPE (NEE ASHAMU)

3. MISS. TITI ASHAMU

4. THE PROBATE REGISTRAR

 

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURE, APPELLATE PRACTICE, AMENDMENT OF COURT PROCESSES

 

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SUMMARY OF FACTS

The Appellant filed an application seeking leave to amend his Notice of Appeal filed on July 13, 2020. The Respondents opposed the application, arguing that the original Notice of Appeal was invalid as it was undated and unfiled, therefore incapable of amendment.

 

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HELD

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Application granted. The Court allowed the amendment of the Notice of Appeal as requested by the Appellant.

 

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ISSUES

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Whether the Court can exercise discretionary power to grant leave to amend the Appellant's Notice of Appeal.

 

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RATIONES DECIDENDI

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EFFECT OF AMENDMENT – RELATION BACK DOCTRINE

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"Once a process is amended, the amended process takes the place and effect from the date of initial process. It is as if the amended process was the one filed all along and it does not matter at what stage the amendment was done." – Per Uwabunkeonye Onwosi, J.C.A.

 

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TECHNICAL DEFECTS – APPROACH TO JUSTICE

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"Our Courts have long ago been enjoined to lean in favour of substantial justice rather than technicalities. Technicalities have been slaughtered on the altar of substantial justices." – Per Uwabunkeonye Onwosi, J.C.A.

 

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AMENDMENT OF NOTICE OF APPEAL – REQUIREMENTS

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"It is trite law that once there is a valid notice of appeal, it can be amended. The purpose of such amendment must be to ensure that the complaints of the appellant against the proceedings in question are laid and ventilated before the Court." – Per Uwabunkeonye Onwosi, J.C.A.

 

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TIMING OF AMENDMENT – SCOPE

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"The law is trite and well settled that an amendment can be made at any time before judgment.

This is reasonable because once judgment is delivered; a seal has been put to the controversy between parties and therefore ends the adjudication in that Court." – Per Uwabunkeonye Onwosi, J.C.A.

 

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GROUNDS FOR REFUSING AMENDMENT

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"It is only where the application to amend is made mala fide or if the proposed amendment

would cause unnecessary delay or will in any way unfairly prejudiced the other and apposite party, or where amendment sought is quite irrelevant or useless or would only and merely raise technical issues that leave to amend may be refused." – Per Uwabunkeonye Onwosi, J.C.A.

 

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TIME LIMIT FOR AMENDMENT – JUDICIAL DISCRETION

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"The Court does not set a time limit to do justice and in the same vein it does not or perhaps also cannot set a time limit to grant an amendment designed to achieve justice between the parties." –Per Uwabunkeonye Onwosi, J.C.A.

 

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AMENDMENT AND JUSTICE – PRIMACY

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" All amendments ought to be granted if thereby justice is done between the contending parties." –Per Uwabunkeonye Onwosi, J.C.A.

 

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VALIDITY OF FILED DOCUMENTS – REGISTRAR’S CERTIFICATION

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"On the face of the said Notice of Appeal, it was endorsed and certified by the Deputy Chief Registrar of this Court, T. O. Oladiran signed and dated." – Per Uwabunkeonye Onwosi, J.C.A.

 

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REGISTRAR’S INADVERTENCE – EFFECT

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" Where there is no other specific date of filing as argued by the 1st-3rd Respondents, it is mere inadvertence of the Registrar which cannot be visited on the Litigants." – Per Uwabunkeonye Onwosi, J.C.A.

 

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AMENDMENT DURING APPEAL – SCOPE

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"Even where briefs of argument have been filed and exchanged and an appeal is virtually ready for hearing, it will not prevent the Court from exercising its undoubted discretion to allow an amendment both to the notice and grounds of appeal." – Per Uwabunkeonye Onwosi, J.C.A.

 

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RIGHT OF APPEAL – FACILITATION

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" The general attitude of the Courts is to facilitate the rights of action and as a follow up, the constitutional rights of appeal." – Per Gabriel Omoniyi Kolawole, J.C.A.

 

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COMPETENCE OBJECTION – TIMING

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" The issues as to the alleged incompetence of the Notice of Appeal is an issue which can be raised and argued when the appeal is duly constituted." – Per Gabriel Omoniyi Kolawole, J.C.A.

 

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AMENDMENT APPLICATION – CONSIDERATION

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"I agree with his reasoning in arriving at the decision in over ruling the objection." – Per Binta Fatima Zubairu, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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Court of Appeal Rules, 2021

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