Amendments Flashcards
AMENDMENTS
ORDER 16
Where a party wants to amend their pleadings, because of errors or the discovery of new facts after pleadings have been filed, despite the rule against departure which binds parties to their pleadings, there are rules that flagrant parties the right to amend their pleadings.
The power of the ct to allow parties to amend their pleadings is discretionary and must be exercised judicially. The test is whether or not the amendment will promote the course of justice, and if it is necessary for determining the material issues in dispute.
*The rule however remains that the party is bound by his or her pleadings whether it contains errors or new facts had been discovered.
What is the purpose of an amendment
To enable the court to determine the real question or issue in controversy that has brought the parties to court.
Amendments may correct errors or defects in proceedings and ensure fairness and Justice – Yeboah v. Bofour [ 1971]
An amendment must be allowed if it is made in good faith; regardless of how late, as long as it does not cause injustice to the other side.
When will the court normally allow an amendment?
The courts will normally and generally allow an amendment provided it is made in good faith.
The principle adopted by the courts is that amendment must be allowed however late if it can be made without causing injustice to the other side.
Generally, amendment will be allowed unless the Grant will entail injustice to the other party, or it’s made in bad faith to delay proceedings for instance, general application for amendments will be granted. Also, if by the blunder committed, the other party has suffered some injury which cannot be compensated with cost, Cropper v. Smith [1884]
SOURCE OF POWER TO GRANT AMENDMENT BY THE COURT
O16:- parties must apply to amend their pleadings and other documents in the proceedings
O81 r 1(2) (b): - where there is noncompliance the ct may among others allow such amendments to be made, and such orders to be made dealing with the proceedings generally as it considers just.
O4:- allows amendment of process by way of joining parties or joining causes of action.
How and when to amend
Amendments may be made with and without leave of the court depending on the stage of the proceedings.
P may amend the writ of summons once without leave of the ct at any time before the close of pleadings. OR 16r1
Where the writ of summons is amended without leave after it has been served, the amended writ shall be served on each defendant to the action. Hansen v. ECG [1992].
Where Appearance has been entered by a Def. before the writ of summons is amended by P, the Def is not required to enter fresh Appearance to the amended writ, as the amended writ replaces the original writ.
Amendment of Notice of appearance
Under O16 r 2 a Def shall not amend a notice of Appearance without leave of the ct.
Effect of amendment
An amended pleading relates back to the date the writ or pleading amended was filed.
When a pleading or writ is amended, the original writ or pleading ceases to be a part of the ct record, the amended writ becomes a part of the ct record, and the reliefs claimed are substituted.
Kai v. Amarkye
AMENDMENT OF PLEADINGS
O16 r 3
A party can amend any pleading without leave of the court once at any time before pleadings are closed (when a pleading is amended without leave, it gives cause automatically to the ff.:
Where an amended SoC is served on a Def who has already filed a SoD the Def may amend the SoC without leave of the Ct. the period for the amended SoD shall either be fixed by the rules for service of defence, or the period of 14 days after the amended SoC is served on the Def (whichever is earlier).
Where an amended SoD is served on P who has already filed a reply, p may amend the reply without leave of the ct to directly respond to the Def amendment. The period for service of the amended Reply is 14 days after the amended defence is served on the plaintiff
AMENDMENT OF PLEADINGS
O16 r 3(6)
Where party fails to respond to an amended plea, the defaulting party will be deemed to rely on the unamended pleading.
A party served with an amended pleading may apply to the ct to have the amendment struck out within 14 days from the date the amended pleading was served.
The ct hearing such an application, if satisfied that the amendment would not have been granted if leave of the court was sought will order the amendment to be struck out.
AMENDMENT OF WRIT OR PLEADING WITH LEAVE OF COURT
O16 r 5
Ct may upon an application by a party grant leave to amend the writ or any other pleading on terms that may be just and, in a manner, as directed.
Order 16 r 5 (3) allows an amendment to correct the name of a party notwithstanding that the effect of the amendment will be to substitute a new party if the ct is satisfied that the mistake sought to be corrected was genuine and was not misleading or would not cause any unreasonable doubt as to the identity of the person intending to sue or be sued. Missed v. Darko [1977]
C/o Ghana industrial Holding Corporation v. Vincent’s Publications [1971] – naming a non- juristic person as a party, particularly as a P, may be fatal to the action since there would be no P in law.
Amendment - Capacity and new cause of action
O16 r 5(4) ct may allow an amendment to alter the capacity in which a party sued if the new capacity is one which the party had at the commencement of the proceedings or has since acquired.
rule changed in Akron v. Bulley, which held that a writ issued by a person who lacked capacity to sue was a nullity
O16 r 5 (5) amendment may be allowed to add or substitute a new cause of action, if the new cause of action arises out of substantially the same facts as the cause of action.
Amendment - additional claims
An amendment to a pleading will be allowed if it is in line with the evidence adduced at trail, as long as the evidence is admissible in the first place.
An amendment may also be allowed for additional claims or reliefs if evidence on records allow such claims.
The ct will grant an amendment if it will not necessitate the calling of additional evidence
AMENDING OTHER DOCUMENTS
O 16 r 7
At any stage of the proceedings, a ct may suo moto or on its own motion or on the application of a party order any document I. The proceeding to be amended on terms as may be just and as may be directed
APPLYING FOR AMENDMENT
General rule: amendment can be applied for at any stage of the proceedings and same granted.
In practice, different factors in granting or refusing an application for an amendment.
Ct will generally grant an application is made before the close of evidence.
After the close of evidence, amendments are usually refused unless there is evidence on record to support the amendment.
Where the amendment will lead to calling of fresh evidence after close of case, it will be refused.
When is an amendment not allowed?
General rule: amendment can be applied for at any stage of the proceedings and same granted.
In practice, different factors in granting or refusing an application for an amendment.
Ct will generally grant an application is made before the close of evidence.
After the close of evidence, amendments are usually refused unless there is evidence on record to support the amendment.
Where the amendment will lead to calling of fresh evidence after close of case, it will be refused.
Each application for amendment will be determined on its merits.
An amendment that will not enable the ct to determine the real issues in dispute will be refused
An amendment that seeks to withdraw an admission offered by a party should not be allowed, unless the ct is satisfied that it was made inadvertently
Ct will not allow an amendment that has the effect of setting up a claim that is statute barred.
If a writ cannot be issued, for that claim, an amendment will not be allowed.
