Under order 23, the court allows the amendment to get to the root of the matter and determine the real issues in dispute without prejudicing the other party’s case, although ultimately amendments lie at the discretion of the Court. Generally, however negligent or careless the mistake and however late the party makes an application amendment should be allowed if it will not cause injustice to the other side which cannot be compensated for by costs (per Brett M.R. in CLARAPEDE V COMMERCIAL UNION ASSOCIATION, 1883). In JOHN v. FOFANA, Beccles-Davies JA, held that in modern practice, amendments to writs and pleadings are liberally granted. A party whose application appears to be neither frivolous nor lacking in good faith is only refused liberty to amend if to grant it would cause injustice to his opponent.
WHAT RULE WILL YOU USE TO AMEND AND HOW WILL YOU APPROACH THE COURT?
Amendment can be made with or without leave of the court by either party in litigation or by the Court suo moto based on the forgoing :
AMENDMENT MADE WITHOUT LEAVE
Writ of summons
Under Order 23, Rule 1 (1), the Plaintiff may amend his writ without leave once before pleadings are deemed to be closed (whether it is a generally or specially indorsed writ). If the writ has not yet been served on any of the parties to the action, he may make any type of amendment he wishes. But were the writ is amended after service unless the plaintiff on an application made ex parte to dispense with such service and the court directs that you don’t need to serve, you must serve the other side (Rule 1 (2).
However, if the writ has been served on any party to the action, then under Order 23, Rule 1 (3), the plaintiff without leave of the court cannot (a) add, remove or substitute any party or even altar the capacity of any party (DAVIES V ELSBY BROTHERS, 1961), thus if the Plaintiff wishes to add a new plaintiff he must come under Order 18 Rule 6; (b) add or substitute a new cause of action (DORNAN V ELLIS, 1962); or (c) amend his statement of claim if he has already served (in a specially indorsed writ). CECIL CHARLES THOMPSON THOMPSON ON CIVIL PROCEDURE
Appearance
Under Order 23, Rule 2 (1), the defendant may amend his appearance without leave but he cannot add a new defendant. If he wishes to add a new defendant he must counterclaim under Order 18 Rule 3, make an application for the nonjoinder of a party under Order 18, Rule 6, or issue a third party notice under Order 19, Rule 1, as the case may be. Under Order 23, Rule 2 (2), the amended memorandum of appearance should be indorsed, filed and served in the same way as the original. The indorsement may be “Amended this 10th Day of June 2021 pursuant to Order 23 rule 2(1) of The High Court Rules 2007”
Pleadings
Order 23, Rule 3 (1) interacts with rule 1 (3c) in that in the later if an amendment of a statement of claim is indorsed on the writ the amendment has to be made before the service of the writ, so for instance when you issue a generally indorsed writ your pleadings are not engrossed or included you have to file your statement of claim.
So any party can amend their pleadings without leave once before pleadings are deemed to closed (i.e. statement of claim, statement of defence and counterclaim (if any), reply and defence to counterclaim, and rejoinder), then pleadings are closed 14 days after serving the last reply and shall serve the amended pleading on the opposite party.
If an amended statement of claim or defence is served on the other side, in reply, either of them may amend their subsequent pleading without leave (If they had already served) and pursuant to rule 3 (4) references to a defence and a reply can also be interpreted as references to a counterclaim and defence to counterclaim respectively. However, the amendment made in reply should relate only to the part of the first pleading which was amended (SQUIRE V SQUIRE, 1972).
A defendant can counterclaim against another defendant as if the counterclaim were a
statement of claim and he is regarded a plaintiff in the circumstance by virtue of rule 3(5). Also, if the other side chooses not to amend, it can simply mean the amendment might be diminimis or unnecessary but albeit he will be taken to rely on it in answer to the amended pleading (Order 23, Rule 3 (6).
CECIL CHARLES THOMPSON
THOMPSON ON CIVIL PROCEDURE
Pleadings can be amended any number of times and at any time in the proceedings by the written agreement of all the parties to the action (Order 23, Rule 11 (1). But you cannot amend a counter claim by consent if the amendment consists of the addition, omission or substitution of parties. The indorsement will be- “Amended this day of 2021, pursuant to Order 23 (11) of the High Court Rules”.
WHAT IS THE GUIDING PRINCIPLE ON DISALLOWANCE OF AMENDMENT MADE
WITHOUT LEAVE?
A writ amended under Order 23 rule 1 (1) or a pleading amended under rule 3 (1) requires that such amendment is to be served and the party served may apply to the court to disallow the amendment within 14 days after service. So where any amendment of the writ or pleadings is made without leave the other side may apply within 14 days to the Court to disallow the amendment under Order 23, Rule 4 (1).
Hearing
At the hearing of such an application the court will consider the conditions stated in Order 23, Rule 5 subrule (3) – (5): (1) if it is the name of a party that is to be altered, the Court must be satisfied that the mistake was a genuine one, that it was not misleading and that it caused no doubt as to the identity of the party intended; (2) if it is the capacity of a party that is to be altered the Court must be satisfied that the party had that capacity when the proceedings started or that it has it presently; (3) if the change is to add or substitute a new cause of action then the new cause of action should come from the same or substantially the same facts as an existing cause of action. So if the Court is satisfied that if an application for amendment made with leave would have been refused under the abovementioned conditions and the part amended without leave it shall order that the amendment or part of it be struck out.
AMENDMENT MADE WITH LEAVE
Writ of summons
Under Order 23, Rule 5 (1) subject to rules 6, 9 and 10 of order 18 and this rule, the Court may grant leave to amend the writ or the pleadings at any time in the proceedings on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.
CECIL CHARLES THOMPSON
THOMPSON ON CIVIL PROCEDURE
Further, in Rule 5 (2) an application to the court can be made after the relevant period of limitation current at the date of issue of the writ has expired or to put in another way, if the limitation period expires thereafter the court will grant leave to amend (if just) claims in subrule 3, 4, 5 :-
subrule (3) to correct the name of a party notwithstanding that the effect will be to put in a new party, the court will allow it if it’s a genuine mistake that is sought to be corrected e.g. If you want to sue ‘Patrick M. Lambert’ and you put his sons name ‘Patrick I. Lambert’ and address it to the son, you will have sued the wrong party and may well have made a genuine mistake.
Subrule (4) to change capacity in which a party sues in order to prevent your action from failing, if the new capacity is one which that party had at the date of the commencement of the proceedings or has since acquired.
Subrule (5) notwithstanding that the effect will be to add or substitute a new cause of action, the court will allow it if the new cause arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make amendment.
(Note: The purpose and effect of the Limitation Act is to provide the period within which an aggrieved party is to bring his cause of action against the adverse party, so if he fails to bring an action within that period of time it means he is statute barred but it does not necessarily mean he does not have an action)
So if you look at Order 23, 1 (3) amendment without leave cannot be made in 3 situations but now pursuant to the abovementioned those amendments can be made but with leave. However, as a rule, it is to be noted that leave to amend a statement of claim will be refused after evidence has been led on both sides; instead it should be applied for before or at the close of the plaintiff’s case (WHITE CROSS V TAYLOR, a local case).
Other originating process
Under Rule 6 the Court may give leave to amend originating summons, originating notice of motion and petition, at any stage of the proceedings. But you are to amend the originating process itself and not the affidavit in support.
CECIL CHARLES THOMPSON
THOMPSON ON CIVIL PROCEDURE
Certain other documents
The court may at any stage either of its own motion (suo moto) or on the application of any party under Order 23, Rule 7 (1) order any document in the proceedings to be amended on such terms as to cost or otherwise as may be just but this rule does not apply to judgment or order (Rule 7 (2) as held in HULBERT V THURSTON (1931). It may only correct clerical and other minor mistakes (Order 23, Rule 10), as illustrated in THYNNE V THYNNE (1955). However, the rationale is to determine the real question in controversy between the parties or to correct any defect or error in the proceedings (NOTTAGE V JACKSON, 1883). See White Book page 379, 380, 381 para. 20/8/6 respectively. This rule is supplemented by Order 2, Rule 1 (2) which confers a broader power upon the Court to allow any amendment to be made as it sees fit where there has been a failure to comply with any of the rules (SINGH V ATOMBROOK LTD., 1989). An amendment duly made takes effect from the date of the original document which is amended, as held in SNEADE v WORTHERTON.
WHAT IS THE EEFECT OF A FAILURE TO AMEND AFTER AN ORDER HAS BEEN
MADE?
Once the court has given leave to amend a writ, pleading or other document, then under Order 23, Rule 8, the applicant must make the amendment within the period specified, or if no time is specified, within 14 days. If the applicant fails to effect the amendment within the time limited then the order will cease to have effect. The period specified may, of course, be extended which is done by filing an application but if the time is fixed by law then its statute barred and when the latter happens to be the case the Judge is bound to interpret the law and not change it.
COMMENT OF THE MODE OF AMENDMENT AND INDORSEMENT?
Mode of amendment
Under Order 23, Rule 9 (1), if the amendments to be made are too many or too long or of such nature that to make written alterations of the document would make the document difficult or inconvenient to read, a fresh document should be prepared instead of amending. Otherwise, it tells you how to amend which is by underlining the new things and crossing out the old things however, in the case of a writ or originating summons it has to be re-sealed and a copy filed because after amending a sealed document it has to be resealed. CECIL CHARLES THOMPSON THOMPSON ON CIVIL PROCEDURE
Indorsement
Under Order 23, Rule 9 (2) if a document is amended it should be indorsed with a statement to that effect. The statement should specify the date of the amendment as well as the name of the judge who authorized it (if done with leave) or the number of the rule under Order 23 under which it was amended (if done without leave).
So if you’re amending under these rules you should put an indorsement and underline it so it becomes immediately apparent. For instance, if you’re amending pursuant to the leave of a judge, you indorse it as follows : “Amended the Day of 2021, pursuant to Order 23 Rule 5 (3) of The High Court Rules 2007 (or without leave as the case may be)”.
WHAT DOES THE RULE SAY ABOUT AMENDING JUDGMENT AND ORDERS?
Rule 10 talks about amendment of clerical mistakes in Judgment or Orders or even errors arising out of them from any accidental slip or omission. The Court will correct them on motion or summons at any time, without the need for an appeal.
Cost
Amendment however, will come at a price to the party seeking it; the court will grant the order on terms as to costs or otherwise as may be just and it will be done in such manner as it may direct. In practice, the applicant will bear the costs of the application.
