SAHEL SAHARA BANK VS SP CONSTRUCTION LIMITED & 3 ORS

The Defendants/Applicants have brought this motion for leave to amend paragraph 16 their Statement of Defence.

Their reason simply is that during the trial, it became evident from the evidence of given by both sides that the 1st Defendant made certain payments and lodgments into its account prior to the expiry of the facility in issue and also subsequent to the expiry of the facility.

This is borne out of Exhibit H tendered by the Plaintiff making it imperative that their prayer is granted.

Thus the 1st Defendant seeks an amendment to its Statement of Defence to synchronize the evidence with its pleadings The Plaintiff is opposed to the Application on the basis that the amendment is unnecessary and will occasion undue delay contrary to the spirit Order 1 r 2 of C. I. 47. He submits further that, the proposed Amendment is premised on the evidence already before this court being the bank statement (Exhibit H) therefore Sections 1& 2 of the Evidence Act, 1975 (NRCD 323) gives the court the power to determine all questions of fact except in jury trials before it and make the necessary inferences from the evidence before the court as Section 18 of the Evidence Act mandates.

He prays the Application is dismissed since both parties have joined issues with regard to how much was repaid and the court is positioned to make inferences from the evidence before it and come to a conclusion on the issue of payments.

In contention is the position of the law on evidence taken on un-pleaded facts.

Counsels for both the Applicant and Respondent took different positions which will be addressed shortly.

The overriding principle with regard to Amendments as contained in Order 16 r. 7 of C. I 47 is for the purpose of: 1. determining the real question in controversy between the parties or 2. correcting any defect or error in the proceedings This rule received judicial blessings in the case of Gandaa v. Gandaa [1989 – 90] 2 GLR 58 where it was held that; “For the purpose of determining the real questions in controversy between the parties or of correcting any defect or error in the proceedings, the court may, at any stage of the proceedings either of its own motion or on application of any party, order any document in the proceedings to be amended on such terms as to costs or order any document in the proceedings to be just and in such manner as it may direct”Same was held in the case of Mahama Hausa v. Baako Hausa [1972] 2 GLR 469 It was held that an amendment should b