Amendment of records

• Pages: 54-55

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90. Amendment that is designed to create a suit that was not in existence

will not be granted by Court.

“An amendment that is designed to create a suit that was not existence, as in the

instant case where the amendment was being sought by the appellant with a view to

enhancing the award of special and general damages made in the High Court so that

the Court of Appeal on hearing and granting the amendment figures, will not in my

view be permissible. See Pedro St. Mathew Daniel v. Olajide Bamgbose 19 N.L.R.

7. Indeed, a similar principle of law was enunciated in Ameachi v. Obloha (1972) 2

E.C.S.L.R. (Pt. 2) 596 at 597; See also Agbapuonwu v. Agbapuonwun (1991) 1

(Pt. 65) 33 and Unegbu v. Medland Enterprise Ltd. (1990) 6 N.W.L.R. (Pt. 156)

306.” - Per Onu, J.S.C., in Iweka v. S.C.O.A. Suit No. S.C.231/1992; (2000) 15

W.R.N. 106 at 119-120; (2000) 7 N.W.L.R. (Pt. 64) 325 at 341.

91. Appellate Court’s power to amend record of trial Court.

“The Court has a discretionary power which is inherent and statutory to amend the

record of the trial Court to do the substantial justice: Metal Construction (W.A) Ltd.

and Others v. Migliore and Anor. (1976) 6-9 S.C.163.171-172.” - Per Edozie,

J.C.A., in Eze v. George Suit No. CA/E/394/86; (1993) 2 N.W.L.R. (Pt. 273) 86 at

98.

92. Determination of cases has to be in accordance with pleadings of parties.

“Cases of the parties are determined in accordance with their pleadings and evidence

on matters not pleaded goes to no issue: see Emegokwue v. Okadigbo (1973) 4

S.C. 113 at 117; Agu v. Ikewibe (1991) 3 N.W.L.R. (Pt. 180) 385; Adimora v.

Ajufo (1998) 3 N.W.L.R. (Pt. 80) 1 at 14-15. From the pleadings in the instant case,

it will be seen clearly that the defence of the appellant regarding the allocation of the

land in dispute is that the land was allocated to him by the family head and elders of

the Rumucholu family. It clearly was not his case that the allocation was made to the

plaintiffs by a person or persons who had no capacity so to do. In other words, the

defendant/appellant by his pleadings did not admit the allocation alleged by the plaintiffs

and clearly did not base his defence upon the challenge of the validity of such allocation.

Surely he cannot now make a case that P.W.1 was lacking in capacity to allocate the

land to the 1st plaintiff’s late husband, see Nigerian Fishing Co. v. W.N.H.C. (1969)

N.M.L.R. 164 at 167.” - Per Nsofor, J.C.A., in Ejilemele v. Opara Suit No. CA/

PH/46/91; (1998) 9 N.W.L.R. (Pt. 567) 587 at 634.

(14) AMENDMENT OF RECORDS

93. Appellate Court’s power to amend the record of a trial Court.

(1) “It seems to us that the powers of the Federal Court of Appeal under Section 16

of Decree No. 43 of 1976 and of this Court under Section 22 of the Supreme Court

Act No. 12 of 1976 are wide enough as to allow the type of measure taken by the

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