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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 30TH APRIL, 2014 Suit No. NICN/ABJ/270/2012 BETWEEN 1. MR. ABDULRAMAN OMADE 2. MR. ONYEKA SUNNY NKWOR CLAIMANTS/APPLICANTS 3. MRS. AMINA ATTAH 4. FRANCIS KAYODE JEGEDE AND NIGERIAN EXPORT-IMPORT BANK DEFENDANT/RESPONDENT (NEXIM) REPRESENTATION Tunde Nordi Esq for the Claimants/Applicants. Chuma Ajaegbu Esq with Hellen Dicks Esq for the Defendant/Respondent. RULING This is a Motion on Notice dated 30th January, 2014 and filed 31st January, 2014 brought pursuant to Order 11 R 1(1) of the National Industrial Court Rules 2007 wherein the claimant/applicants praying foe leave of court for the following:- 1. AN ORDER enlarging time within which to file an additional witness statement on Oath, and call an additional witness Mr. Kayode Francis Jegede on behalf of the claimants herein. 2. AN ORDER for such further Order(s) this Honourable Court may deem fit to make in the circumstance. The motion is supported by a 6 paragraph affidavit sworn to by Francis Jegede the 4th claimant in this suit and a written address. In reaction to the motion, the defendant/respondent filed a counter affidavit of 10 paragraphs deposed to by Hellen N. Dickson (Mrs.) a Legal Practitioner and an Associate in the law firm of Chuma Ajaegbu & Co the Solicitor to the defendant and a written address dated and filed 25th February, 2014 and deemed properly filed on the 6th March, 2014. On the same 6th March, 2014 the motion of the claimant was moved. The applicant raised an issue which is whether there are valid legal grounds for granting the reliefs sought therein. In arguing this issue the applicants submitted that in exercising its discretion, this Honourable Court must consider:- a. Whether the application accords with our procedural laws and/or case law. b. Whether there are extenuating circumstances which can withhold this Honourable Court from granting this application. That under Order 11 Rule 1 of the rules of this court, this Honourable Court is perfectly entitled to grant the reliefs sought in this application. It is also submitted that in pursuance to Section 36 (2) of the Constitution of Nigeria 1999 (as amended) which guarantees individual’s right to fair hearing, allowing this application would be in deference to the above rights of the claimants. Applicants cited the case of LONGE V F.B.N. (2010) 42 NSCQR 618, the Supreme Court held that “It is a duty on every court to resist any attempt to deny a citizen a right conferred on him by law”. In the case of AGIP V AGIP PETROL (2010) 42 NSCQR 167, the Supreme Court also held that “the court has a responsibility to ensure that the rules are obeyed by parties in a proceedings”. Applicant further submitted that a requirement to file witnesses’ statement is required under the rules of this court. The necessity to file the statement is not bound by a specific rider or exception, it is therefore, to be subject to the rules laid down by this court. They further submitted that there are no extenuating circumstances and/or conditions which should necessitate the inapplicability of the provision of the rules of this court, particularly Order 11. It is further submitted that under the applicable case law, an applicant is perfectly entitled to seek to enlarge the time within which to file a court process, as in this case. A witness statement on Oath. In the case of MIN. OF PETROLEUM V EXPO SHIPPING (2010) 42 NSCQR 1020 (a) the Supreme Court held inter alia that “for an application for extension of time to grant a relief, the court must exercise its discretion judiciously and judicially, that is, it must satisfy the application of the relevant legal principles, and the need to do justice in the matter”. Applicant submitted further that on the strength of averment contained in paragraphs 2 – 5 of the claimants supporting affidavit, the principles laid down in paragraph 3:4 above, has been satisfied. Applicant concluded there are valid legal grounds to grant the reliefs sought herein. The defendant raised 2 issues on the claimants application:- a. Whether additional new witness is at liberty to testify as he wants in his direct evidence (vide witness statement on Oath) or must he testify in line with the party’s pleading. b. Whether a party is allowed to use the instrumentality of new additional witness direct evidence (vide witness statement on Oath) to overreach the opponent both in reference to the pleadings and evidence already elicited vide cross – examination. Issue No A Ex abundanti cautela, the defendant wishes to emphatically state that it is not opposed to the grant of leave of court to the claimants to call additional new witness. The claimants are at liberty to call even 20 witnesses if they need them to prove their case and the defendant will not be opposed to them. What the defendant is opposed to is what these witnesses will be coming to testify to. It is submitted that parties are bound by their pleadings and so also the corollary that evidence given not in accordance with the pleadings goes to no issue. See ojiogu V ojiogu (2010) 3 MJSC (Pt. III) 121 at 125 ratio 4. The defendant said the essence of the requirement of seeking leave of court to call additional new witness and exhibiting the proposed witness statement on Oath is to enable the court and the other party see and know what the additional witness is coming to court to say. That we are in the new era of practise requirement of front – loading which equally requires that the proposed new witness statement on Oath must be available to be seen before being allowed or permitted by the court. Therefore, this allows the opponent to query and oppose the allowing of such witness statement on Oath if it violates rules of law, practise, procedure and evidence. The defendant submitted that the testimonies contained in paragraphs 7, 8, 9, 10, 11, 12, and 13 of the statement on Oath of the new additional witness Francis Kayode Jegede were not facts pleaded in the amended complaint and Amended statement of facts establishing cause of action dated and filed 10th October, 2013 and by the rules of practise and evidence, the new witness cannot in his direct evidence which is the statement on Oath testify on them. In the case of Agbola V UBA & 2 Ors (2011) 2 – 3 MJSC (Pt. II) 150 at 154 ratio 2 the Supreme Court reiterated the principle behind this motion when it held:- It is an elementary principle of law that parties are bound by their pleadings as the main aim of pleadings is to put the other party on notice of what to meet at trial, so that it would also be well prepared and not taken by surprise. Anything outside the pleadings that is sought to form party of the trial must be ignored as it goes to no issue. (underline ours). The other side of it is that where a party to a case fail or refuses to submit the issues he raised in his pleadings for trial by giving evidence in their support, the trial court must resolve the case against the defaulting party except there are other legal reasons to the contrary. See Ajao V Ademola (2005) NWLR (Pt. 913) 636 at 663 paragraph C – E ratio 7. In a layman’s word, when it comes to evidence and practise – “round pegs must go into round holes and square pegs into square holes” Ipso facto, parties are bound by their pleadings and are not permitted to lead evidence outside their pleadings and such evidence if led goes to no issue. At the same time, party that fails to submit the issue it raised in its pleadings for trial by failing to give evidence on that, must have that issue resolve against it. The defendant invited the Honourable Court to examine thoroughly the current pleading of the claimants and it will be glaring that some facts which the proposed new witness Francis Kayode Jegede will be coming to testify in direct evidence vide witness statement on Oath are not pleaded. Therefore, if they are not pleaded then he cannot testify on it. He urged the court to bar him from testifying in direct evidence on these facts and to strike out paragraphs 7, 8, 9, 10, 11, 12 and 13 of the witness statement on Oath and limit his evidence to the other paragraphs contained therein. Issue No. B The defendant repeated it stand that it is not opposed to the grant of leave of court to claimants to call additional witness. The defendant is only opposed to the design of the claimants to use the witness statement on Oath of the new additional witness Francis Kayode Jegede to overreach both the state of pleadings of the defendant and the evidence elicited vide cross – examination by the defence. This kind of practise has long been out lawed and shot down by the Superior Courts (both Court of Appeal and Supreme Court) in a plethora of legal authorities. In Ojah & Ors V Ogboni & Ors (1976) 1 NMLR 96 the Supreme Court emphasized that as a general rule an introduction of new issues/facts/matters by way of an amendment (which here include the calling of new additional witness to say something new outside the pleadings of the party) will be granted if it is “for the purpose of determining in the existing suit the real questions or question in controversy between the parties but should not be allowed if it will entail injustice to the Respondent and Applicant is acting mala fide. It is our humble submission that the evidence sought to be given by the proposed new additional witness Francis Kayode Jegede will cause injustice to the defendant because it is intended to overreach the defendant. My lord, the Supreme Court in the cases of (i) Akaninwo & Ors V Nsirim & Ors L.E.R. SC 88/2001 (2008) at page 30 (Also reported in (2008) 1 SC (Pt. III) 151 and (ii) Dalhatu V Turaki (2003) 7 SC 1 had extensively dealt with situation that overreaching a judicial process were alleged and decisively held that such are not permissible in Judicial practise. Therefore, the applicant submitted that if an application is designed to overreach the Respondent, a trial Judge should not grant it. With respect to the present case, the new additional witness is being called upon to testify vide his witness statement on Oath and state that only the four of them (claimants) promotion were annulled; that they were selectively targeted for victimization for being close to erstwhile executive of the defendant whereas evidence from PW1 shows otherwise. Also new witness is coming to state that the claimants did not sign any Severance Agreement but only a blank sheet of paper which is a the root of the defence of the defendant. These acts are wholly condemned by the court as act to overreach the defence and not allowed. In the case of Akninwo V Nsirim (Supra) the Supreme Court held:- A state of over reaching arises where the Applicant unnecessarily anticipates the case of the Respondent and places a premeditated wedge to close any meaningful pleading capable of giving victory to the Respondent in the case, a court of law which is also a court of equity will not allow an Applicant playing such artifice on the Respondent. The Supreme Court equally overreach as circuminvent, out wit or get the better of by cunning or artifice, by a clever trick. The defendant then submitted that the proposed witness attempt to give evidence that they continued to have imaginary and false meeting with the Managing Director of defendant up till recently is a clever attempt to overreach the defendant defence of statute of limitation of action it raised against them. These are clever unprofessional trick that the courts do not condone and he urged the court to strike out all the offending paragraphs 7, 8, 9, 10, 11, 12 and 13 of the witness statement on Oath. Concluding that new witness statement on Oath should not be allowed to be used to overreach the Respondent. Having read the submissions of counsel and the authorities in this suit the issue for this court to consider is:- Whether in circumstances of this case the court can grant the reliefs sought. In the motion at hand the claimant is seeking leave of court to call additional witness and to file an additional witness statement on Oath. To the claimants their application is not one for amendment, but an application by a litigant in a matter the 4th claimant to be afforded opportunity to state his case in difference to Section 36(2) of the (1999) Constitution as amended. The claimants submitted further that pleadings have been settled and that by a careful perusal of the processes, the evidence that the 4th defendant is seeking is already in the domain of the court. That the evidence of the 4th claimant could assist the court to arrive at a just decision as it concerns all issues that the court is called upon to do. That the affidavit sought to be introduced will only afforded the claimant to state his case as pleaded. That if the application is refused there will be infraction of the right to fair hearing of the 4th claimant as guaranteed by the Constitution. That the pleadings have been filed and there is no attempt to introduce a new claim. In reaction to the claimants’ application the defendant submitted that they are not opposed to the claimants bring more witnesses but what they are opposed to is what the witnesses are coming to say. They contended that parties are bound by their pleadings, and that the evidence of the witnesses must be in line with their pleadings. That those paragraphs proposed evidence of the 4th claimant not in line with the pleadings should be expunged. The question that arises is whether the applicant the 4th claimant can be allowed to give evidence in this matter. I think he can. The applicant is the 4th claimant in this suit and so he can give evidence in a matter in which he is involved to support the evidence already given by the 1st claimant to make the case more explicit and to assist the court to arrive at the justice of the case. While I agree with the learned counsel to the defendant/respondent that the claimants are free to call as many witnesses as they want, they are to give evidence only to the issues pleaded in their statement of claims. Any evidence given on issues not pleaded goes to no issue. In the circumstance therefore, the 4th claimant should limit his evidence to that contained amended statement of facts and not introduced new ones, and he is free to give his evidence. Ruling is entered accordingly. _____________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE