RULING. The claimant vide motion on notice dated 23/10/18 and filed on the same day is seeking for: 1. An order of this Honourable Court granting leave to the claimant/applicant to amend her statement of fact and reply to the defendant’s statement of defence in line with the schedule of amendment attached as exhibit A. 2. An order deeming the applicant’s statement of fact with witness statement on oath already filed on 10th day of January 2018 and reply to the defendant’s statement of defence with the witness statement on oath filed on 21st February 2018 in this case as properly filed and served, necessary fees having been paid. 3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstance. The grounds for this application are as stated in the face of the motion papers. 1. The application was supported by an 11 paragraphs affidavit, sworn to by one Aderonke Kehinde, a counsel in the law firm of Yusuf Ali, & Co. counsel for the complainant. A written address was also filed along with the motion on notice. 2. Alex Akoja, Esq; counsel for the claimant/applicant in arguing the motion on notice relied on the deposition contained in the supporting affidavit and the exhibits attached therein. Counsel also adopted the written address as his argument. In the written address counsel formulated single issue for determination, to wit; ‘‘Whether this honourable Court can exercise its discretion in favour of the claimant/applicant and grant the extant application’’. Counsel commenced argument by referring to Order 26 Rule 2 of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017, and submitted that this court has power to grant amendment at any time but not more twice with leave of court, provided that the party may not completely change the cause of action endorsed on the process. Counsel cited the cases of OGIDI V EGBO (1999) 10 NWLR (PT.621) 64, U. B. N. V OSAZEE (2011) b7 NWLR (Pt.1246) 293NWARA V NWABUEZE (2011) 14 NWLR (Pt.1271) 474. According to counsel the reason for seeking amendment as shown in the affidavit in support of this motion on notice indicates that the amendments sought to be made are basically because some paragraphs in the statement of facts and reply to the defendants statement of defence were merely rephrased and therefore does not contain any addition of facts or claims neither does it raise any new legal issues. Counsel submitted it is wrong to visit the inadvertence of counsel or mistake of counsel on the litigant. AKANIWO V NSIRIM (2008) 9 NWLR (Pt.1093) 494. Counsel also argued that a party shall not loose right of amendment because of mistake has been made in preparation of pleadings. OLORO V FALANA (2011) 17 NWLR (Pt.1275) 207. Counsel argued that the amendment was not in bad faith or with a dilatory motive, but it is in order to set the facts properly before the court and such will not prejudiced or work injustice. In opposition to this application the 1st defendant filed a 29 paragraphs counter-affidavit, sworn to by one Yunusa Umar Yunusa, a senior legal officer with the Nigerian Tourism Development Corporation. A written address accompanied the counter-affidavit, where a sole issue was submitted for determination, thus: ‘‘Whether the claimant/applicant can seek to amend its pleadings in defiance to a valid court order of this Honourable court’’. Temitayo Abodunrin, Esq; counsel for the 1st defendant/respondent in arguing the issue for determination submitted that order 26 Rule 1 of the rules of this court makes provision for amendment of pleadings but order 26 Rule 2 of the same rules also gives exceptions stating circumstances where such request for amendment should not be granted. Counsel submitted the amendment should not be granted as it was in bad faith with an intention to present a completely different case, and made to cure an earlier defect in the procedure of which would amount to an abuse of court process, it is argued that claimant made substantial alteration in the statement facts rather than, mere correction of grammatical errors which it had alleged in its affidavit. It is also argued that this misrepresentation of facts by the claimant as stated on its statement of facts was made in disobedience of a valid order of this court. Counsel submitted that the claimant having not complied with order of this court but rather coming with an application seeking for an amendment of its statement of facts when no such fact is actually before the court. This is an attempt to put something on nothing and expect it to stand. Counsel maintained that this application is an abuse of judicial process as the claimant/applicant has decided to file its pleadings in disregard of the existing court order with a view to distort the facts of the case in order to mislead the court which may lead to a miscarriage of justice. Counsel argued the heading of the affidavit in support that bears ‘affidavit is support of motion for execution’ there is no motion for execution before the court. COURT’S DECISION. I have thoroughly examined the motion on notice, affidavit attached to it, the counter affidavit filed in opposition to the motion on notice and the written addresses filed for and against the motion on notice. Having regard to the facts as disclosed in the affidavit attached to the motion on notice and the counter affidavit, the issue to be resolved is: ‘‘Whether leave can be granted for an amendment filed without leave of court’’. I shall begin this ruling with consideration of the oral application made by the counsel for the claimant in the course of argument seeking for an order of this court for correcting the title of the affidavit attached to the motion on notice to read ‘affidavit in support of motion on notice for amendment’. According to counsel the title of the affidavit that indicate that it is in support of execution was a mistake. The 1st defendant’s counsel who was in court when this application was made by counsel for the claimant remained silent and did not indicate whether he is objecting or not to the oral application for amendment. In my view the silence of counsel for the 1st defendant on the oral application for amendment of the heading of the affidavit attached to the motion on notice, means there is no objection to the application. In the absence of any objection to the oral application, I shall grant the application for amendment. The title of the affidavit attached to the motion on notice shall now read ‘affidavit in support of motion on notice for amendment’ instead of affidavit in support of execution. The claimant/applicant has averred in the affidavit in support of this application that this court has power to grant amendment at any time, but, not more than twice with leave of court, provided that the party may not completely change the cause of action endorsed on the process. According to counsel for the claimant the reason for seeking amendment as shown in the affidavit in support of this motion on notice indicates that the amendments sought to be made are basically because some paragraphs in the statement of facts and reply to the defendants statement of defence were merely rephrased and therefore does not contain any addition of facts or claims, neither does it raise any new legal issues. For the 1st defendant order 26 Rule 1 of the rules of this court makes provision for amendment of pleadings but order 26 Rule 2 of the same rules also gives exceptions stating circumstances where such request for amendment should not be granted. Counsel for the 1st defendant submitted that the amendment should not be granted as it was in bad faith with an intention to present a completely different case, and made to cure an earlier defect in the procedure of which would amount to an abuse of court process, it is argued that the claimant made substantial alteration in the statement facts rather than, mere correction of grammatical errors which it had alleged in its affidavit. It is also argued that this misrepresentation of facts by the claimant as stated on its statement of facts was made in disobedience of a valid order of this court. Counsel submitted that the claimant having not complied with order of this court but rather coming with an application seeking for an amendment of statement of facts when no such fact is actually before the court. This is an attempt to put something on nothing and expect it to stand. It is clear from the submissions of counsel that they have all agreed that this court has the requisite power to grant amendment of pleadings in deserving situation. However, the power being discretionary has to be exercised judicially and judiciously in line with well-established principles of law. An application for amendment is usually to prevent the manifest of in justice or the case from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence of or mistake of counsel on the litigant. Notwithstanding, this court has unfettered right to refuse amendment in deserving cases. The application for amendment must be scrutinized very carefully in the light of the facts in the affidavit in support of the application for amendment. In considering the application an important consideration is if the application is delayed the court should be interested in knowing the reason behind the delay. If the reason for amendment was as a result of an important material relevant in the application coming to the applicant’s notice late, that will be a consideration in his favour. See CHIEF EDMUND I. AKANIWO & ORS. V CHIEF O. N. NSIRIM & ORS. 2008 9 NWLR PT.1093 439, 2008 I SC PTIII 151. The court is also enjoined to consider peculiar facts of each case. See the totality of the content of the amendment sought vis-à-vis the reliefs sought in the matter as well as the real question in controversy in the litigation. The time and stage of the case when the application is made is an important consideration, this is despite the fact that the rules of this court in order 26 leans heavily in favour of granting amendment and is generally against the refusal of amendments. By the averments in the counter-affidavit the 1st defendant has raised issue of competency of the statement of facts sought to be amended in that the said statement of facts was not filed in line with order of this court directing parties in this suit to file their processes to bring them in conformity with the rules of court without changing the facts or establishing a new cause of action. The claimant on his part maintained that there was no new facts raised or new cause of action. Rather the amendment was aimed at putting facts before the court for just determination. I have had a hard look at the originating processes commencing this suit filed on 16/3/2006 at the Federal High Court, Abuja, comprising of writ of summons and statement of claim and the proposed exhibits to be relied on at the trial. I have equally perused the general form of complaint, statement facts and all the accompanying documents filed on 10/1/18 at the registry of this court in Abuja Judicial Division. It is manifestly clear that the processes filed by the claimant on 10/1/18, more particularly the statement of facts (pleading) is not the same with the pleading filed by the claimant on 26/3/2006 at the Federal High Court, this means that the claimant amended his pleading without first applying for leave to do such amendment. The said pleading having been filed in violation of the order of this court is invalid, incompetent and non-existing. A party once he has presented his processes before the court has no power to unilaterally amend his document without the consent and permission of the court. Any amendment of such processes having been made without involvement of the court is ab initio null and void and of no effect whatsoever. It is trite law that pleading once filed are only amended when leave to do so is duly applied for and expressly granted by the court. It is not a matter of free for all or a process by which a party with fine tricks on his side would overreach the other. See ALFRED YAHAYA V FELIX CHUKWU (2002) 3 NWLR (Pt.753) 20. A party cannot unilaterally amend the process before the court without leave of court. See ENIGBOKAN V AMERICAN INT’L INSURANCE CO. NIG. LTD 1994 6 NWLR PT.348 1. B. O TAIWO OSINUPEBE V QUADRI SAKA SAIBU 1982 7 SC 49, AYEIBAKURE TARIAH (2014) LPELR-22675 CA Having found that the statement of facts filed on 10/1/18 which the present application sought to ament is null and void, the basis of the entire application has been knocked off, it has no standing, as there is nothing before the court to amend. This finding is enough to dispose of this application. But I shall proceed to examine the reasons adduced for amendment in the affidavit in support to see whether the reasons are tenable. Going by the decision in ONIWO’S case supra, an applicant for amendment must not be found to have delayed his application. It is without any doubt that this suit was filed on 26/3/2006, and the trial in the case was conclude. Thereafter, counsel for both parties filed their final written addresses and adopted same before the court. The case was then adjourned for judgment. However, the judgment was not delivered because the trial judge who heard the matter to conclusion retired from the bench of the Federal High Court before delivering the judgment in the case. After the retirement of the judge, the Federal High Court was divested of its jurisdiction to hear this suit as a result of Third Alteration Bill of 2010. Consequently, this suit found its way to this court for trial denovo. From 26/3/2006 to date is a period of 12 years 8 Months. The question to be asked is can it be said with all sense of responsibility that the amendment being sought was brought at the earliest opportunity in the proceedings. The answer is capital no this application was not brought at the earliest opportunity in the proceeding having regards to the facts that the trial had at one time been concluded and the case adjourned for judgment if not because of retirement of the judge. It is interesting to note that the affidavit evidence in support of this application did not also explained the reason for the delay in bringing the application for amendment. It is my view that there is no due diligence on part of the claimant in bringing this application for amendment. Furthermore, contrary to the assertion of the claimant, paragraph 12 of the proposed amendment clearly brought forth new facts that are not in the original pleadings. The facts raised in this paragraph could not be said to have only come to the knowledge of the applicant late, more particularly considering the fact that there had been trial of the matter at some times in the history of the case. In my view apart from the fact that the statement of facts sought to be amended is non-existing due to its alteration without leave of this court, also it is manifestly clear from the foregoing revelation that the amendment, if allowed at this stage, is capable of overreaching the defendants. In the circumstances the application for amendment is hereby refused. Sanusi Kado, Judge.