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RULING This action was commenced by the Claimant against the Defendants by way of a Writ of Summons filed on February 28, 2008 at the Federal High Court. At the Federal High Court, the parties exchanged pleadings. The matter was however, transferred to this Court by an order of the Federal High Court of 28th November, 2011 made pursuant to section 22 (2) of the Federal High Court Act, Order 49 Rule 5 of the Federal High Court Rules, 2009 and section 24 of the National Industrial Court Act, 2006. The Claimant brought a Motion on Notice dated 17th January, 2012 and filed on the same date. The Motion on Notice was brought under the inherent jurisdiction of the Court seeking for the following reliefs: 1. AN ORDER granting leave to the Plaintiff to amend the Writ of Summons and Statement of Claims. 2. AND FOR SUCH FURTHER orders or other orders as this Honourable Court may deem fit to make in the circumstance. The Motion on Notice is supported by 10 paragraphs affidavit deposed to by one Seyi Bakare. The Motion on Notice is also accompanied by Applicant’s Written Address, “Exhibit – A” which is the Complaint and the Proposed Amended Statement of Claims. The Respondents did not file any Counter-affidavit. The Motion on Notice was heard on 14th February, 2012; with counsel on both sides making their respective submissions. Moving his application, Mr. M. O. Omonade holding the brief of Oghenovo O. O. Otemu for the Claimant/Applicant submitted that the Motion on Notice was brought pursuant to Order 3 Rule 3 of the NIC Rules, 2007 and under the inherent jurisdiction of the Court and prayed the Court to allow him to move in terms of the motion paper. Counsel for the Claimant relied on all the 10 paragraphs of the affidavit in support of the motion. Counsel for the Claimant/Applicant also referred the Court to the Proposed Amended Statement of Claim and the Written Address accompanying the Motion on Notice. In his Written Address, the Claimant/Applicant formulated a lone issue for determination which is couched in the following words: “Whether this Court is empowered to allow the Plaintiff/Applicant to amend his statement of Claims”. Counsel adopted his Written Address. Counsel for the Claimant/Applicant finally urged the Court to grant the reliefs sought as per the motion paper. Responding, Counsel for the Respondents submitted that although he did not file any Counter-Affidavit, he would however, oppose the applicant’s application on points of law. Consequently, Counsel for the Respondents submitted that Order 3 Rule 3 of the NIC Rules, 2007 under which the applicant is seeking to amend his Writ of Summons and Statement of Claims places a duty on the applicant to ensure that the amendment sought is not such that will completely alter the cause of action. Counsel further submitted that an applicant seeking leave of the Court to amend is required to underline the relevant portions sought to be amended or altered in the Proposed Amended Statement of Claim or Writ of Summons so as not to confuse or mislead the Court. Against the backdrop of the failure of the Claimant/Applicant to particularize in any manner the portion of the Writ of Summons or the Proposed Amended Statement of Claims the Claimant/Applicant is seeking to amend, Counsel urged the Court to refuse the prayers of the Applicant as contained in the Motion on Notice. It was the turn of Counsel for the Claimant/Applicant to respond to the submissions on points of law made by Counsel for the Respondent. Reacting, Counsel for the Claimant/Applicant argued that the submission of Counsel to the Respondent on Order 3 Rule 3 of the NIC Rules, 2007 was a total misconception. At this point, the Court requested Counsel on either side to come and address it with authorities on whether or not there is an obligation to particularize the portion sought to be amended in the Writ of Summons and the Proposed Amended Statement of Claims. Consequently, the case was adjourned to 17th February, 2012 for continuation of hearing of the Motion on Notice. On 17th February, 2012, Mr. A. T. Yusuf appeared for the Claimant/Applicant while Mr. R. O. Osuyi appeared for the Respondent. In continuation of his submissions respecting the Respondent’s Counsel objection to the Motion on Notice on points of law, Counsel for the Claimant/Applicant submitted further that he had perused the Rules of this Court and that nowhere in the Rules is it provided that the portion or paragraphs in a Statement of Claims sought to be amended should be underlined as argued by Counsel for the Respondent. Counsel for the Claimant/Applicant specifically referred the Court to Order 3 Rule 3 of the NIC Rules, 2007 which deals with amendment arguing that what the Claimant seeks to do is not an alteration or a complete change of the cause of action. Counsel for the Applicant submitted that the only amendment sought is in respect of paragraph 43 of the Proposed Statement of Claim and the 5th Prayer on the Writ of Summons Counsel for the Claimant/Applicant argued further that assume without conceding that the Rules of the Court provide for underlining, the failure of the Claimant/Applicant to underline should be treated as mere irregularity under Order 5 Rule 1 of the NIC Rules, 2007. He submitted that the failure of the Claimant to underline would not occasion miscarriage of justice. Counsel for the Claimant/Applicant further referred the Court to the decision of the Supreme Court of Nigeria in FAMFA V. A.G. Federation (2003) (Pt. 852) p. 453 at 467 paras. G-H r. 7. According to the Counsel for the Claimant/Applicant, the objection raised to the failure of the Claimant/Applicant to underline the portions of the Writ of Summons and the Proposed Amended Statement of Claims was a mere storm in a tea cup which is nothing but an attempt by Counsel for the Respondent to rely on mere technicality. He cited and relied on the case of Osigwe V. PSPLS Management Consortium Ltd. (2009) 3 (Pt. 1128) 378 at 401 para. C. r. 9. He urged the Court to discountenance the objection of Counsel to the Respondent since it was baseless. On his part, Mr. Osuji of Counsel for the Respondents submitted that they did not file a Counter-Affidavit because of their intention to reply on points of law. Counsel submitted that the Court has the discretionary power to determine whether or not to grant leave to amend. Counsel for the Respondents submitted further that in exercising its discretion, the Court must be guided by the fact that the amendment is not to over-reach the other party and that the amendment sought is not to commit fraud or alter the cause of action. Counsel argued that the motion being on notice, the Claimant has a duty to guide the Court properly by particularizing the portion sought to be amended in the Statement of Claims and Writ of Summons. He argued that the failure of the Claimant to do this is fatal and a denial of the platform upon which the Court is to exercise its discretion in favour of the Applicant. Counsel urged the Court to refuse the application of the Claimant/Applicant. Let me observe that in the course of his oral submission, and even in his Written Address, Counsel for the Claimant did not cite any authority to aid the Court in exercising its discretion whether or not to grant the application. This is capable of giving the impression that leave to amend is for the asking. This is not the case, as counsel seeking the nod of the Court to amend origination processes or pleadings bears the task of guiding the Court in the exercise of its discretion by citing relevant authorities. Be that as it may, the principles guiding the grant of leave to amend are well settled. In Shell BP Petroleum Dev. Co. V. Jammal Engineering (Nigeria) Limited (1974) 4 S. C. 24 at 57 the Supreme Court of Nigeria held that: The rules for granting amendments of pleadings or proceedings are very flexible and a great deal depends on the discretion of the Judge or tribunal. Where there has been no breach of any relevant rule of law in that respect a party opposing the grant of leave to amend such pleadings or proceedings has a rather uneasy task and unless he can establish prejudice, unnecessary expense, and irreparable inconvenience or lack of good faith, the hands of the court are free. When determining an application for leave to amend, the Court must consider whether the essence of the amendment sought will foster the course of justice or enable it to determine the real issue in controversy between the parties. This is because the purpose of an amendment is to ensure that the issues or questions in controversy between the parties are determined and thereby put an end to litigation - see the case of Chief of Defence Staff Gen. O. A. Azazi & Anr V. Chief of Army Staff Lt. Ge. L. N. Ovo Adhekegba (2009) 13 N.W.L.R. (Pt. 1158) 332 at 365 paras. G-H. A court of law has the power to amend processes at all stages until the matter is finally determined except where the applicant acts malafide or where the injury occasioned to the other party cannot be compensated by costs or otherwise. The Supreme Court of Nigeria’s decisions in the case of A. U. Amadi V. Thomas Aplin & Co. Ltd. (1972) 1. A.N.L.R. 413 at 420-421 and Chief Jacob Ibanga & Ors V. Chief Edet Usanga & Ors (1982) 5 S.C. 49 at 62 paras. 10 – 20 are apposite. In Gen. Yakubu Gowon V. Mrs Edith I. Ike-Okongwu & 2 Ors (2003) 6 N.W.L.R. 38 at 48 para. G-H. the Supreme Court of Nigeria held that, “When an action has been started the court has, at all its stages until it is finally determined, ample powers of amendment. And it is the duty of the court to exercise those powers”. See also the case of Chief of Defence Staff Gen. O. A. Azazi & Anr V. Chief of Army Staff Lt. Gen. Ovo Adhekegba supra at 365 paras. G-H. In an application in the nature of the one before the Court seeking to amend the claim of the Claimant, the onus is on the Respondents to show that the said amendment is malafide or that the Respondents would be prejudiced or suffer injustice as a result of the grant of the amendment sought. The Court of Appeal has decided that a party opposing an application for an amendment bears an uneasy task and unless the party is able to establish bad faith, prejudice, unnecessary expense or irreparable inconvenience, the hands of the courts were free to grant an amendment - see the case of Chief of Defence Staff Gen. O.A. Azazi & Anr V. Chief of Army Staff Lt. Gen. Ovo Adhekegba supra 332 at 363, paras. D-E. See also the Supreme Court of Nigeria decision in Chief Asuquo I. Amanso & Anr. V. The Registered Trustees of the Deliverance Church (2009) 17 NWLR (Pt. 1170) 207 at pp. 216 paras F-G; 219 paras A-D. Although an amendment which would change the nature of the claim is not to be allowed, however, an amendment is not refused simply because it adds to the cause of action, in so far as the cause arose out of the same facts in respect of which the plaintiff has already sought relief. In other words, an application seeking leave of the court to amend originating processes will be refused where the effect would be to change the nature of the action and thus occasion injustice to the other party. In Chief of Defence Staff Gen. O. A. Azazi & Anr V. Chief of Army Staff Lt. Gen. Ovo Adhekegba supra pp. 365-366, paras. H-C the Court of Appeal held that: A trial court would be within its power to grant an amendment even if to Do so would be to add to the existing cause, provided that the cause of Action arose out of the same facts in respect of which the plaintiff has Already claimed relief… I have considered the nature and substance of the Respondents’ objection to the grant of the application. Mr. Osuji, of Counsel for the Respondents had argued strongly that the failure of the Counsel to the Claimant/Applicant to underline or particularize in any particular manner the portions of the Writ of Summons and the Statement of Claims sought to be amended has denied this Court the basis for the exercise of its discretion in favour of the Applicant. The pertinent questions I would like to ask in this regards are: 1. Whether the failure of the Claimant/Applicant to underline or particularize the portions relating to the amendments sought breaches any rule of law? 2. Are the Respondents misled or prejudiced in an irreparable manner by the failure to underline or particularize? The Respondents’ Counsel has not shown that the amendment sought if granted will overreach the interest of the Respondents, result in unreasonable expense to the Respondents or that the application is in bad faith. I should mention that the Respondents’ Counsel did not cite any statutory or judicial authority in support of his submission that the Claimant/Applicant is required to particularize the portion of the Statement of Claims he seeks to amend; this is despite the fact that the Court requested him to submit any such authority within three days from 17th February, 2012. It has also not been shown that the procedure adopted by the Claimant/Applicant is in breach of any rule of law, particularly, Order 3 Rule 3 of the NIC Rules, 2007 under which the application is brought. Specifically, Order 3 Rule of the NIC Rules, 2007 provides that: A Claimant may alter, modify or extend the claim without any amendment of the endorsement on the Complaint: provided that the claimant may not completely change the cause of action endorsed on the Complaint without amending it. In the course of his submissions, Counsel for the Claimant/Applicant submitted that the portions sought to be amended are prayer 5 in the Writ of Summons and paragraph 43 of the Statement of Claims. I have also taken into consideration paragraphs 5 & 6 of the Affidavit in support of the Motion on Notice which provide as follows: “5. That while this case was going on, the Defendants resorting to self help, retired the Plaintiff from his employment. ‘6. That it is therefore necessary to amend the Statement of Claims to incorporate the latest development of the illegal retirement of the Plaintiff”. The averments in paragraphs 5 & 6 of the affidavit in support of the motion reproduced above show the need for the amendment, that it is sought in good faith and that the amendment sought is material. It is also important to mention that the Respondents have not contradicted or denied these paragraphs by way of counter depositions in a counter-affidavit. In the light of the principles and authorities I have referred to above, particularly, the decision of the Supreme Court of Nigeria in Shell BP Petroleum Dev. Co. V. Jammal Engineering (Nigeria) Limited (1974) supra at 57 the Supreme Court of Nigeria held that: The rules for granting amendments of pleadings or proceedings are very flexible and a great deal depends on the discretion of the Judge or tribunal. Where there has been no breach of any relevant rule of law in that respect a party opposing the grant of leave to amend such pleadings or proceedings has a rather uneasy task and unless he can establish prejudice, unnecessary expense, and irreparable inconvenience or lack of good faith, the hands of the court are free. I have come to the inevitable conclusion that to refuse this application will amount to a denial of justice to the Claimant/Applicant who by the amendment seeks to bring before the Court a fact or situation that occurred subsequent to the filing of this suit. It is therefore my conclusion that there is no inhibition to the grant of this application. I therefore hold that this application has merit. Accordingly, the prayers of the Claimant/Applicant are granted as per the motion paper. Leave is hereby granted to the Claimant/Applicant to amend, file and serve the Writ of Summons and the Statement of Claims on the Respondents within 7 days from today. I have arrived at this conclusion fully aware of the fact that the Respondents have not shown bad faith, irreparable inconvenience or unnecessary cost which the grant of this application might occasion to them. I have also adverted my mind to the fact that the Respondents have time to react appropriately to the proposed amendment as granted, more so that hearing of the substantive suit has not commenced. The Respondents have 7 days from the date of service of the amended Writ of Summons and Statement of Claims on them within which to file and serve any consequential amendment to their joint Statement of Defence. In sum total, the prayers of the Claimant/Applicant are hereby granted as prayed. …………………………………………………………………. Hon. Justice B. A. Adejumo, OFR President, National Industrial Court of Nigeria