QK
Amendments are allowed so
as to make it easy to determine the real question in controversy between the
parties provided that it does not cause injustice to the other party; injustice
which can not be compensated by costs. Grant or refusal of an amendment is at
the discretion of the court.
They amend:
1. To
avoid a multiplicity of suits
2. When
there has not been undue delay
3. Where
no new cause of action is introduced
4. Where
no vested legal right is affected
Amending
without leave of the court
1.
A party may amend pleadings once at any
time before pleadings are closed
2.
Amended pleadings do not require a new
affidavit
3.
Mandatory that plaintiff or the party
amending endorses on the amended pleading the number of the rule pursuant to
which it has been made- failure is fatal
4.
If plaintiff amends and serves the
defendant the defendant is allowed to amend his defense within 14 days
Factors
a Court Considers
1.
Whether amendment sought embodies is a
legally valid claim
2.
Reasons why subject matter of amendment
was not in original pleading
3.
Delay or disruption of judicial
administration
4.
Extent to which am. Departs from original
claim as it tends to complicate issues
Principles
1.
The court has wide discretion to amend
pleadings
2.
Am. May be sought at any stage but within
reasonable time and provided that any damage occasioned to the other side may
be catered for by costs
3.
No prejudice should be occasioned to the
other side
4.
Proposed am. Should be consistent with the
original suit plus the same cause of action
5.
Only applications for am. made in good
faith will be granted
6.
The am. Should not be an abuse of the
court process
7.
Proposed am. Should not be immaterial or
merely technical
8.
Plaintiff will not be allowed to amend
plaint if it will reframe his case and deny the defendant a defense
9.
A party may apply to court to disallow
such am. Pleadings – this must be within 14 days of being served with the am.
Pleadings
10.
Note: a party may amend without leave of
court before pleadings close but the court has an unfettered discretion to
allow am. At any stage of the proceedings
11.
The court may suo-motu order an am.
12.
Qualification: an am. May be allowed even
if its effect is to substitute a party or add a new cause of action- only if
the resultant cause of action arises out of the same facts as the current CoA
(cause of action)
Mode
of Amendment
1.
Where a party amends – The pleadings must
include:
2.
The date of the amendment
3.
Date of order allowing am.
4.
Where no order (am. Without leave) the
number of the rule in pursuance of the am.
Such procedures keep
track of changes made and the authority upon which they are made so parties do
not abuse Am. of pleadings to ambush opposite sides with the new facts.
On
the Am. Doc
1.
Deleted words must be shown by striking
them out in red ink but in such a manner so as to leave them legible
2.
All added words are on the other hand,
underlined in red ink
3.
The plaint will be headed- Amended Plaint
4.
Date of the pleading must be indicated and
then struck out with the word ‘amended’ and the new date given.
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