Download PDF
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: 27th MARCH, 2014 Suit No. NICN/ABJ/198/2012 BETWEEN UHAMBER VANGERBE AMUR CLAIMANT AND FEDERAL MORTGAGE BANK OF DEFENDANT NIGERIA REPRESENTATION S. A. Ajayi Esq with C. Otisi (Miss) for the Defendant/Applicant. J. M. Shishi Esq for the Claimant/Respondent. RULING This is a Motion on Notice brought by the Respondent/Applicant under Order 3 Rule 3 & (4) and under Order 11 Rule 1 of the National Industrial Court Rules 2007 and under the inherent jurisdiction of this Honourable Court praying for the following reliefs:- 1. AN ORDER of this Honourable Court granting leave to the Respondent/Applicant to amend her statement of defence to include her counter-claims as underlined in the proposed statement of defence/counter-claim and witness statement on Oath. 2. AN ORDER of this Honourable Court deeming the proposed amended statement of defence/counter claim, witness statement on Oath as filed separate as properly filed and serve. 3. AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this case. The motion is supported by 5 paragraph affidavit deposed to by Lilian Aguku a litigation Secretary in the law firm of Henry Ojuola & Co, the Solicitor to the defendant/applicant. The claimant/respondent filed a 15 paragraph a counter affidavit deposed to Igwesi Chinedu a legal counsel in the firm of J. M. Shishi & Co Solicitors to the Claimant in opposition to the applicant’s motion with a written address in support of the 21st January, 2014. On the 28th of January, 2014 the applicant further filed a further and better affidavit. On the 15th of February, 2014, the parties adopted their addresses. The Respondent/Applicant formulated a sole issue for the determination:- Whether the Respondent/Applicant is entitled to the releifs sought in circumstance of this application. On this issue the applicant submitted that it is clearly spelt out in the Rules of this Honourable Court that this court can grant leave to amend a pleading so long as the proposed amendment is necessary for the purpose of determining the real questions in controversy between the parties or if such fresh facts would enable issues to be properly joined between the parties. See Order 3 Rules 3 & 4, Order 11 Rules 1 of the National Industrial Court Rules, 2007. Applicant submitted further that it is also generally accepted that a court of law will generally allow an amendment to be done at any stage of proceedings before Judgment so long as no injustice will be suffered by the Respondent and so long as the Applicant is not acting malafide. In the case of AMADI V THOMAS ALPHINE & CO LTD (1972) 1 ALL N.L.R. (PT. 1) 409, it was held that an amendment will generally be allowed at any stage of the proceedings on the question in controversy between the parties. See also AWACHIE V CHIME (1990) 5 NWLR (PT. 150) 302 AT 308, ODUNUKWE V OFOMATA (1999) 6 NWLR (PT. 607) 416 AT 424 AND NITEL V OGUNBIYI (1992) 7 NWLR (PT. 255) 543 AT 561. Applicant submitted that the present application is meant to bring out the real issues in controversy and to allow this court the opportunity to completely and conclusively determine the issues between the parties, and to bring the evidence already adduced in line with the pleadings, as the issue of the official car is already before the court as can be seen from this amendment if granted is what the plaintiff seeks to reflect in the additional witness statement on Oath. This court indisputable has the discretion to recall a witness at any stage of the proceedings particularly on issues on which evidence has been given but which requires some further elucidation. See OGOBODU ODOGHA & ANOR. (1967) NMLR 221. The applicant submitted in conclusion that the desired amendment is meant to bring in facts which will help this court to completely and conclusively determine the issues in controversy and urged this Honourable Court to hold that the Applicant is entitled to the reliefs sought on the motion paper and to grant same in the interest of the justice of this case. The claimant also formulated one issue for determination before this Honourable Court. Whether or not the Applicant’s motion is competent. The claimant submitted that it is trite law that upon the filing and service of the statement of claim by the claimant, the defendant if he intends to defend and/or counter-claim in the action, shall not later than 14 days or any other time prescribed for defence, file a statement of defence, and counter-claim (if any) as provided by Order 9 Rule 1 of the National Industrial Court Rules 2007. The Applicant on the 20th February, 2013 moved a motion for extension of time to file her defence out of time which was granted and the court extended time for her to file her defence within 14 days of the order. The applicant refused and or failed to file same. The claimant submitted that the failure of the Applicant to file her defence is a testimony that she has no defence to the action. The claimant urged the court to so hold. It is also an established principle of law that the court can only allow an amendment on pleadings if and only if, such process is within the purview or contemplation of the court. The claimant submitted further that a counter-claim is a separate suit that is raised in the defence for convenience. See the case of Ogbonna V A. G, Imo State (1992) 1 NWLR (Pt. 220) Pg. 647 where the Supreme Court held as follows:- A counter-claim is for all intent and purposes, a separate and independent action in its own right although a defendant for convenience and speed may join it with his defence. In the instant case, the applicant has no defence and never raised the issue of a counter-claim during the hearing of the case. That the applicant voluntarily closed her case on the 30th September, 2013 and the court Ordered for final written address. Claimant further submitted that the applicant’s motion has no prayer for the reopening of the case and therefore incompetent and liable to be struck out. That the present application is calculated to unduly delay, overreach, and work hardship on the claimant/respondent. Claimant urged the court to discountenance with the argument of the learned counsel to the applicant as it lacks merit and goes to no issue at all. The court cannot be seen suo moto reopening a case that it closed on flimsy reasons that are aimed at wasting the time of the court. The claimant said that there is no provision under the rules of this Honourable Court that entitles the applicant to bring this application. It submitted further that Order 3 Rules 3 & 4 of the National Industrial Court Rules 2007 cited by the applicant was done out of context and therefore inapplicable to this application. It urged the court to so hold. Having shown that there is no merit in the applicant’s motion, the court is urged to strike out same. I have carefully considered the issues raised in the Defendant/Applicant’s Motion on Notice and the written briefs of counsel and authorities cited in this suit, the main issue for the court to determine is:- Whether or not the court can grant the leave to the Defendant/Applicant to amend the statement of defence to include its counter-claim in the circumstance of this case. The application for amendment by the defendant/applicant is opposed to by the learned counsel for the claimant/respondent by filing of an 15 paragraph counter-affidavit where he submitted that the defendant proposed amendment seeks to unduly delay overreach and work hardship on the claimant. The defendant has no defence before the court so there is no defence to amend. That the court cannot suo – moto re-open the case that is closed. The claimant urged the court to refuse the application for amendment. The grant or refusal of amendment by the court is a judicial discretion which must be exercised judicially and judiciously. The amendment will be granted where it will:- i. Clarify the issues in controversy between the parties. ii. Remove any possible injustice in the case. iii. Not to overreach the adverse party. It is trite that leave to amend pleadings may be granted at any stage of proceedings and it is desirable and important to make such application as soon as the defect in proceedings is detected. The object of any amendment of pleadings is to ensure that litigant’s case is properly and fully placed before the court and amendments are usually granted unless they are brought malafide and if the grant of it will do injustice to the other party. The purpose of this as amendment of statement of defence to include its counter-claim will not delay the case or overreach the claimant without deciding the substantive issue at this stage. It is the defendant desire to regain the Toyota Corolla with Registration No. CL 936 RBC and Federal Government No. F.G. 239 C20. The claimant in paragraph 15 of the witness statement on Oath and amended statement of facts referred to the said vehicle. If the application is granted the claimant will not be overreached, the claimant has already given evidence on this issue. It will do no injustice to the claimant for the court to make a pronouncement on the Car. There is nothing the claimant wants to react to, he has said everything concerning the car in issue. Finally, the claimant has also alleged that the defendant has no defence before the court and that the court can only allow an amendment on pleadings if only such process is within the purview or contemplation of the court. My reaction to the claimant stand is that this issue will be taken as a mere irregularity going by the provisions of Order 5 Rule1. For the reasons given above, the application is granted and the defendant/applicant is granted leave to amend her statement of defence to include her counter-claims. Ruling is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.