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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: October 30, 2014 SUIT NO. NICN/OW/42/2014 Between 1. Mr. Charles Okparaocha 2. Mr. Cassidy Peter (for themselves and representing the following certain 10-number members of Staff of Alcon (Nig.) Ltd. namely: Mr. Okechukwu Osuji Mr. Victor N. Ikuru Mr. Ukah Chimezie Mr. Charles Okparaocha Claimants/Respondents Mr. Godson Nwauju Mr. Blessing Nwaoha Mr. Cassidy Peter Mr. Stanley Umunna Mr. Emeka Akukaria Mr. Chuks Egwuenu And Alcon Nigeria Ltd. ==== Defendant/Applicant Representation: Paul Madu for the Claimants/Applicants Valentine Anyalechi for the Defendant/Respondent RULING This action was instituted by the Claimant against the Defendants vide a General Form of Complaint dated the 9th day of April, 2014 and filed on the 10th day of April 2014 along with supporting originating processes. By a motion on notice dated the 27th day of June and filed on the 30th day of June 2014, the Claimant seeks leave of this court to amend the Claimants’ Statement of facts, and an order deeming the annexed Statement of Facts as properly filed and served. The motion is supported by a 15 paragraph affidavit deposed to by one Njogo Benjamin. In his written address in support of the application for amendment, Counsel to the Claimant indicated that the leave to amend is sought, so as to better reflect the true case of the Claimants as contained in the proposed amendment. Counsel raised a sole issue for determination, which is “Whether the application is meritorious and therefore grantable in the circumstances.” Counsel submitted that pleadings may be amended with the leave of court at any stage of the proceedings, and that the essence is t allow the court to determine the real question in controversy. Referring the court to the case of OLUFUN vs. HADAEMEC LTD (2001) FWLR 208 at 210 ratio 3, Counsel pointed out facts deposed to in the applicants’ affidavit to the effect that by a mistake of counsel, an error was occasioned in the content of the initial Statement of facts filed, hence the necessity to amend, with a view to bringing the true facts of the Claimant’s case at this early stage, especially as hearing is yet to commence. Counsel submitted that this application for amendment is not brought in bad faith, nor is it intended to surprise or overreach the defendant, having not introduced a new cause of action; and that the interest of justice will be met by a grant of the application. In urging the court to grant the Claimant’s application for amendment, Counsel cited the case of IBE vs. NEW NIGERIA BANK (1991) 3 NWLR 233 and submitted that the mistake of counsel ought not to be visited on the litigants. He urged the court to grant the application and to deem the attached Statement of Facts as properly filed and served. In opposition to the Claimants’ application for amendment, the defendant on the 19th day of September 2014, filed a 5 paragraph counter affidavit deposed to by one Zita Amadi. In his written address in opposition, Counsel to the defendant placed reliance on its counter affidavit, and stated further that the facts sought to be introduced by the amendment sought has no nexus with the alleged twist, and that the Claimants have not provided sufficient facts to support their allegation that there was a mistake of counsel. Besides, there has been no express denial of the facts deposed to by the Claimants. Counsel raised a sole issue for determination which is “whether the Claimants/Applicants have satisfied the legal conditions for the grant of an amendment of this nature”. In arguing the sole issue, Counsel to the defendant submitted that it is trite law that pleadings can be amended at any stage before judgment is delivered. However, there are basic legal principles or factors the court will consider in granting or refusing an application for amendment, and these are: (a) The attitude of the parties in relation to the amendment; (b) The nature of the amendment sought in relation to the suit; (c) The time when the amendment is sought. Also, there are circumstances when application for amendment will not be granted despite the satisfaction of the conditions above. Such circumstances include: (a) If it will entail injustice to the respondent. (b) If the applicant is acting mala fide (c) If the application is designed to overreach the respondent (d) If the blunder of the applicant has done some injury to the respondent which cannot be compensated by costs. Counsel referred the Court to the case of AKANINWO vs. NSIRIM (2008) All FWLR (Pt. 410) 610 at 656 – 658 paras. B – G. Counsel contended that this court should refuse the Claimants’ application for amendment in the way and manner indicated in their application. This he said is because the attitude of the Applicants in relation to the amendment does not show any good faith. The application is brought mala fide with the intention to overreach the Defendant/Respondent, and thus defeat the defence of the Defendant. Counsel submitted that from the nature of the amendment sought, the Claimants/Applicants are attempting to use trick or craftiness to put the Defendant/Respondent in a state of hopelessness or helplessness which the Defendant/Respondent cannot meaningfully respond to for the good of its case. Counsel went further that from the issues in controversy between the parties as already made out in the pleadings, it will entail injustice to the Defendant/Respondent to permit Claimants/Applicants to effect the proposed amendment. The blunder of the Claimants/Applicants in presenting their case in installments with a view to pre-empt the Defendant and shop for a case the Defendant will not be able to defend as revealed by this present application will do incalculable harm to Defendant/Respondent. To counsel, Assuming that the facts contained in the Claimants’ affidavit as necessitating this amendment is true, the proper thing to do is to strike out the affected paragraphs from their Statement of Facts, rather than seek an amendment which introduces facts which have no nexus to the reason adduced for the amendment. He said this smacks of bad faith and an intention to shop for a claim the Defendant will not be able to defend. To counsel, even though it is true that the mistake of counsel is not visited on the litigant, it is a different thing when the litigant is a party to the purported mistake. In such instance, this general rule ceases to apply especially where the litigant is a party to the purported mistake or had knowledge of the mistake and encouraged it. On this point, counsel referred the court to the case of DUKE vs. AKPABUYO L.G.A (2006) 2 MJSC p. 94 at 118 paras C – G. as situation whereby a litigant briefs his counsel, verifies the claim as a true representation of the brief to counsel, deposes on oath the same facts as representing the facts of his case and then turn round to claim mistake resulting from emotional instability caused by unproven bereavement is nothing more than deliberate falsehood. He urged the court not to believe the Claimants’ story, especially as there is no medical certificate showing that counsel was truly ill nor is there any Death Certificate to show who died and how the deceased, if any, is related to Charles Okparaocha as alleged in the affidavit in support of their application for amendment. Counsel to the defendant submitted that the Claimants were overwhelmed by the evidence of the Defendant in answer to their claim and in a desperate attempt to overreach the defendant, cooked up the present story to change their case and give a different coloration to it. In other words, Claimants/Applicants want to throw in a different complexion to the case originally filed by them and this they cannot do by way of amendment. See FASEUN V. AWOYEMI (2006) All FWLR (Pt. 334) 1906 at 1922 para. G. He submitted further that the application for amendment was brought mala fide, designed to overreach the Defendant and will amount to injustice to grant same, and that it will best serve the interest of justice to refuse the application for amendment. The Claimants filed a Reply on points of Law wherein Counsel submitted that Paragraph 3(a), (c), (d), (e), (g), (h) and (k) of the Defendant’s Counter-affidavit offend the rules of affidavit evidence; as provided for in Section 115(1)(2)(3) of the Evidence Act, 2011. The depositions of paragraph 3(a) of the counter-affidavit did not contain any basis for disbelieving the affidavit evidence in support of the motion for amendment. Counsel went on to submit that the Supreme Court has severally held that to merely say “I believe” and or “I disbelieve” without more, cannot form the basis of a sound decision. On the submission that the said paragraphs of the Defendant’s counter-affidavit offend the provisions of Section 115(1)(2)(3) of the Evidence Act, 2011, Counsel referred the court to the case of Military Governor, Lagos State vs. Ojukwu (2001) FWLR (Pt. 50) 1779; 1986 1 NSCC 304, per Oputa, JSC. The deponent of the counter-affidavit averred that counsel to the Defendant informed him of the facts of his deposition. But however, the ultimate source of the deponent’s information, namely the Defendant’s counsel, did not make explicit the facts and circumstances forming the grounds of her disbelief. A good example of the vacuous nature of the counter-affidavit is illustrated by paragraph 3(d) and (h) where the deponent countered that the claimant’s affidavit evidence that the claimant’s counsel was over-burdened with work and consequently ill at the time was false. However, the Defendant did not make explicit the grounds for her disbelief. She did not indicate the volume of work at the disposal of the claimant’s counsel at the time to demonstrate whether or not the latter was over-burdened with work. The Defendant also did not make explicit the grounds for disbelieving that the 1st Claimant was mentally unbalanced at the time. To counsel, it is commonsensical that over-burden of work can, and does, lead to illness. And God forbid, he submits, that a counsel, speaking from the Bar, can be doubted on such mundane issues as ill-health. Besides, the defence counsel did not show any superior evidence to discountenance the earlier affidavit evidence of the claimants. The Law is that objection is not raised just for the fun of it. Paragraph 3(e), (f), (g) of the counter-affidavit, counsel stated, will at best, go to the weight to be attached to the amended process when granted; but definitely cannot form the basis for refusing an amendment duly sought. Paragraph 3(i) of the counter-affidavit is a veritable ground for amendment, and cannot qualify for grounds for refusal of the application. In the case of Okure vs. Nelson & Ors. (1986) Vol. 1 QLRN 158 @ 160, it was held that an amendment will be allowed where the affidavit in support has adduced that the amendment became necessary because certain facts had come to light after the Statement of Defence had been filed. And that is exactly the crux of this application for amendment! It was the submission of Counsel to the applicants, citing the case of Adetutu vs. Aderohunmu (1984) 6 SC 92 that in civil litigation, the duty of the Court is to aim at doing substantial justice and to allow formal amendments as are necessary for the ultimate achievement of justice and the end of litigation. Also in the case of Alsthom S.A. vs. Saraki (2000) FWLR (Pt. 28) 2267; (2000) 14 NWLR (Pt. 687) 415, it was held that the object of court is to decide rights of parties and not to punish them for their mistakes,……….Courts can correct all kinds of error or mistakes”. He urged the court to so hold. In reaction to the defendant’s counsel’s written address, counsel to the claimants said that the Defence counsel rightly pointed out in page 2 of his written Address under his “Summary of Facts” that “the Claimants upon seeing the Defence now seeks to amend their Claim/Statement of Fact”. Counsel submitted on the authority of Okure vs. Nelson (Supra) that the Claimants are entitled to so amend their claim consequent upon the filing of a defence. It is counsel’s submission that the most important factors to be considered in an application of this nature is whether the amendment sought is justifiable in the circumstances of this case. The Defence counsel rightfully listed the grounds for granting an amendment of pleadings to include the attitude of the applicant(s). Counsel submitted that the applicants are making this application timeously and without any delay. He went further that the very essence of an amendment is to determine the real question in controversy between the parties; or of correcting any error or defect in the proceedings. See Taiwo & Ors vs. Akinwunmi & Ors (1975) 4 SC 143; Sanni Vs. Abdulsalam (2009) 15 WRN 61 @ 85. The only basis for the refusal of an application for amendment is as encapsulated by the Defence counsel in his written address, namely: whether it will entail injustice to the Defendant; and or if the applicant is acting mala fide; and or if the application is designed to overreach the Defendant, and or whether the Defendant cannot be compensated by cost. Counsel stated that the present application is not plagued by any of these vices listed by the defence. Claimant counsel considers as laughable, the submission of counsel to the defendant that the amendment sought will render the case of the Defence “in a state of hopelessness or helplessness which the Defendant/Respondent cannot meaningfully respond to for the good of its case” See the last two lines of paragraph 4.1 page 2-3 of the defendant’s Written Address). In the last two (2) lines of paragraph 4.3, page 3 of the same written address, the Defence counsel posited that the amendment sought is an “intention to shop for a claim that the Defendant will not be able to defend” In response to this, Counsel submitted that the fact that the case of a Claimant is made more formidable by reason of an amendment of her pleadings is not one of the criteria recognizable in Law for refusing the grant of an application for amendment. In conclusion, Counsel to the applicant submitted that the Claimant’s application for amendment is supported by Order 11 and Order 15 of the Rules of Court, 2007. It is also supported by decided authorities. Above all, the facts and circumstances of this case; and the fact that this application is brought before hearing commences tilt in favour of the grant of this application. Counsel urged the court to grant the application. I have heard counsel on both sides and have considered their submissions, arguments and depositions. Save for the provision for amendment of complaint in Order 3 rule 3 of the rules of this court, the rules made no further provisions for the rules of amendment of pleadings. This court however has the inherent power to allow such amendments to the pleadings of the parties at any stage of the proceedings as is necessary to enable justice to be done to the parties. See IGWE vs. KALU (2002) FWLR (PT 97) 677 AT 712. The exercise of this power to allow amendment is at the discretion of this court which discretion ought to be exercised so as to do what justice and fair play require in each particular case. In this instant case, the applicants have deposed in paragraphs 4 to 7 of the affidavit in support of the application that the statement of fact sought to be amended does not conclusively put forth the case of the claimants and that it was so was the fault of the claimant’s counsel. It was further deposed that the amendments sought will enable the claimants present the whole facts of their case as to avoid springing surprise on the defendants at the trial of the suit. From the counter affidavit filed in opposition to the application and the written address in support by the respondent’s counsel, it is the respondent’s contention that the amendment sought is not made in good faith and if allowed, it will change the colour of the claimants’ case. The respondent has further contended that it will be overreached by the amendment. As a general principle, leave to amend will be allowed unless- i. The application for amendment is made mala fide, ii. If it will entail injustice to the respondent, iii. The proposed amendment will cause undue delay or is irrelevant or useless or merely raises a technical point, iv. The amendment has done some injury to the respondent which cannot be compensated for by cost, v. The application is designed to overreach the respondent, vi. The amendment will result in a party being confronted with an entirely new case at an extremely late stage of the trial or is in conflict with the evidence already given in the trial. See AKANINWO vs. NSIRIM (2008) ALL FWLR (PT 410) 610 AT 658; IGWE vs. KALU (SUPRA) at 717; LAMBU vs. ISYAKAU (2012) ALL FWLR (PT 640) 1295 AT 1329-1331 I have looked at the proposed amendments to the statement of facts and it seems to me that the facts averred therein are materially on the same cause of action as the statement of facts sought to be amended and the facts flow from the same set of circumstances giving rise to the facts already before this court. The facts have not departed from or changed the character of the claimants’ case. The reliefs sought on the amendment have not changed from the original relief sought on the Complaint. I have also observed that this is the first time the applicants will seek leave to amend their pleadings and since this suit has not proceeded to hearing stage, I do not see any injustice or injury being occasioned to the respondents or how they will be overreached by this amendment sought to be made. It is a settled principle of law that mistake of counsel should not be visited on litigant. In this instant application, the claimants want to amend their statement of fact in order to present further facts of their case. In AKANINWO vs. NSIRIM (2008) ALL FWLR (PT 410) 610 AT 676, the Supreme Court, Per ADEREMI JSC, held as follows- “In the preparation of pleadings, counsels are bound to or may be prone to make mistakes. Then must a party lose his right to have the dispute between him and his adversary decided on its merit simply because a mistake has been made in the preparation of the pleadings? I think not. It must always be remembered that the object of the court is to decide the rights of the parties and not to punish them for the mistake which they may make in the conduct of their cases by deciding otherwise in accordance with their rights… After all, court do not exist for the sake of discipline but for the sake of deciding issues in controversy” Therefore, the whole essence of amendment of pleading is to enable the court decide the rights of the parties and not punish them for mistakes they make in the conduct of their cases. Leave to amend pleadings ought to be allowed if by so doing the real question between the parties can be raised between the parties. In BANK OF BARODA vs. IYALABANI COMPANY LTD (2002) FWLR (PT 124) 494 AT 527 it was held that- “An amendment should be granted as may be proper for the purpose of determining the real question or questions in controversy between the parties”. Thus, an amendment of pleading for the purpose of determining the real question in controversy between the parties ought to be allowed at any stage of the proceeding unless such amendment will entail injustice or surprise to the other party or the applicant is acting mala fide or by his blonder the applicant has done some injury to the respondent which cannot be compensated by cost. SEE NIGERIAN DYNAMIC LTD V. DUMBAI (2002) FWLR (PT 105) 823 AT 831. The amendment sought by the applicants can only be for the purpose of determining the real issues in dispute between the parties. In my considered view, the amendment sought will not in any way overreach the respondent or result in injustice to them. It is only to enable the applicants put before this court, the whole facts of their case. In determining whether to grant or refuse leave to amend pleading, the court is to focus at doing substantial justice to all the parties in the matter. It appears to me to be in the interest of justice to grant leave to the applicants to amend the statement of facts. The benefit of justice will be better served if the amendment sought is allowed. It is for this reason that the application to amend the statement of fact ought to be granted and it is accordingly granted. Consequently, the court hereby orders as follows- i. Leave is hereby granted to the Claimants/Applicants to amend their statement of facts in line with the proposed amended Statement of Facts annexed to their application for amendment. ii. The Claimants/Applicants are hereby ordered to file their amended statement of facts within 7 days from today. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge