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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: FEBRUARY 10, 2015 SUIT NO. NIC/LA/213/2011 BETWEEN Jideofor Justin Akunne - Claimant/Respondent AND Eko Bank Nigeria Plc - Defendant/Applicant REPRESENTATION S. O Uzuh, for the claimant. Miss Dooshima Mayange, for the defendant. RULING This matter was commenced by a complaint dated and filed on 15th December 2011. The complaint was first taken against Oceanic Bank International Plc. But by order of this Court granted on 22nd March 2012 by Hon. Justice F. I. Kola-Olalere (the judge who was first assigned the case) the name of the defendant was changed to Eko Bank Nigeria Plc. The change in name of the defendant necessitated the filing of amended originating and defence processes to accommodate the said change in the name of the defendant. By the amended statement of facts, the claimant is praying for a declaration that his dismissal is wrongful; an order for reinstatement; a declaration that he is entitled to benefits, which were broken down into special damages; an order for general damages; and cost of the suit. The defendant consequentially amended its defence processes but had no counterclaim as part of its defence processes. Hearing in the matter had commenced before Hon. Justice Kola-Olalere was transferred out of Lagos and the matter was transferred to this Court by the Honourable President of the Court. The defendant/applicant subsequently filed a motion on notice dated and filed on 30th October 2013, and pursuant to Order 11 Rule 1 of the National Industrial Court (NIC) Rules 2007 and under the inherent jurisdiction of the Court, praying for the following reliefs – 1. An order granting leave to the defendant/applicant to file its amended statement of defence and counterclaim. 2. An order granting leave to the defendant/applicant to file additional witness statement on oath, additional list of documents and additional documents to be relied upon at the trial. 3. An order deeming the already filed and served defendant’s amended statement of defence and counterclaim, additional list of documents and additional documents to be relied upon at the trial as being properly filed and served. 4. And for such other order or further order(s) as this Court may deem fit to make in the circumstance. In support of the motion is an affidavit of 13 paragraphs and a written address. The proposed amended defence processes as well as the defence processes, as amended, were also filed and served. In opposition, the claimant/respondent filed a counter-affidavit of 13 paragraphs and a written address. The defendant did not file any reply on points of law. The defendant/applicant framed one issue for the determination of the Court: whether this application is appropriate/competent in the circumstance and whether the applicant is entitled to the grant of the reliefs sought. The defendant/applicant then submitted that given the inherent powers of this Court, this Court has the discretion (which discretion is to be exercised judicially and judiciously) to grant its application. The defendant/applicant went on that it had placed before the Court sufficient materials as averred in the supporting affidavit upon which to exercise its discretion. Furthermore, that in the interest of justice and fair hearing, the Court needs to grant the defendant’s motion; and that to grant same will not jeopardize the respondent. The defendant/applicant then urged the Court to grant all its reliefs. The claimant/respondent on his part framed two issues for the determination of the Court, namely – 1. Whether the defendant/applicant has satisfied the necessary conditions for leave to amend its statement of defence. 2. Whether the defendant/applicant’s counterclaim is competent. Regarding issue 1, the claimant/respondent answered in the negative. To the claimant/respondent, the defendant/applicant did not place before the Court sufficient materials upon which the Court can exercise its discretion. Referring to paragraph 3 of the affidavit in support, the claimant/respondent contended that the omission of facts talked of therein was not occasioned by the mistake of counsel. To the claimant/respondent, the essence of an amendment is to enable slips, blunders, errors and inadvertence of counsel to be corrected; but that this is not the case in the instant suit, referring to Lasisi Kode v. Yussuf [2001] 4 NWLR (Pt. 703) 392 at 412 and Adewole v. Adesanye (No. 1) [2004] All FWLR (Pt. 231) 1387 at 1359. That the purpose of the defendant/applicant’s motion is to include facts deliberately/negligently omitted by the defendant from the defendant’s counsel which will further delay the speedy determination of this suit. That the application is accordingly mala fide. In any event, that it is on record that the defendant has been filing applications and have delayed the speedy determination of this suit including the application to re-open the claimant’s case for the purpose of cross-examination. Citing Dr Michael Asuen v. Lucky Omoregie [2012] 13 NWLR (Pt. 1316) 71 at 80, the claimant posited that another purpose of amendment is to bring the real issues in controversy between the parties before the Court, which unfortunately the defendant’s amendment is not. That the defence of the defendant in the statement of defence is one of negligence, which is merely repeated in the proposed amendments. The claimant then urged the Court to resolve this issue in his favour. On issue 2, the claimant/respondent submitted that the defendant’s counterclaim is incompetent, referring to Order 9 Rule 1 of the NIC Rules 2007, which provides as follows – Where a party served with a Complaint and the accompanying documents as stipulated in Order 3 of these Rules intends to defend and/or counter-claim in the action, the party shall not later than 14 days or any other time prescribed for defence in the Complaint, file: (a) a statement of defence and counterclaim (if any) (b) list of witnesses (c) Copies of documents to be relied upon at the trial. To the claimant, it is evident that the period limited by the Rules within which the defendant/applicant may file its counterclaim has long expired. That since there is no valid counterclaim, there can be no amendment of it; as such the amendment to include a counterclaim is incompetent. That a counterclaim is a cross-action and not merely a defence to the claim. It is an independent action and not part of the original action. Consequently, where an amendment of pleadings will entail injustice or surprise or embarrassment to the other party, such amendment will not be allowed, referring to Chijioke v. Soetan [2006] 10 NWLR (Pt. 990) 179 at 187. That in the instant case, the counterclaim is not a process before the Court. The amendment of the statement of defence to include a counterclaim will involve a substantial deviation, alteration to the cause of action and also occasion surprise to the claimant. In any event, that the failure of the defendant to move the Court in terms of Order 25 Rule 4 of the NIC Rules 2007 means that the defendant is not ready to pay, and so seeks to avoid the payment of, the N50 per day default penalty for filing the counterclaim out of the 14 days allowed by the Rules, referring to Onwugbufor v. Okoye [1996] 1 NWLR (Pt. 424) 252 at 262 and Provisional Council, OSU v. Makinde [1991] 2 NWLR (Pt. 175) 613 at 615 Ratio 1. The claimant accordingly submitted that the counterclaim is incompetent for the defendant’s failure to pay the required fees for late filing; as the defendant cannot be allowed to evade the consequences of late filing of the counterclaim through the back door or under the guise of amending its statement of defence. In conclusion, the claimant/respondent urged the Court to dismiss the defendant’s application with substantial cost. The issue before the Court is whether the defendant/applicant has made out a case for the grant of its application for amendment of its defence processes. While the defendant/applicant argues that it has, the claimant/respondent contends that it had not. The case of the defendant is that in the interest of justice and fair hearing, its application should be granted. But the interest of justice is not one-sided; and fair hearing is opportunity. A litigant who is given opportunity to do something and decides not to take it cannot be heard to complain. The defendant asserts in its supporting affidavit that the facts necessitating the application for amendment came to the attention of its counsel during a pre-trial conference between the counsel and the client (the defendant). If the client all the while was in possession of the facts but chose to wait until now, should the Court’s discretion be exercised in its favour? I do not think so. In Nze Nathaniel Dike v. The Attorney-General and Commissioner for Justice, Imo State & ors [2012] LPELR-15383(CA) it was held that – The principles of law in respect of amendment of pleadings had earlier been stated in resolving issue one. I only need to add here that, an amendment would not be granted if it would introduce a new issue or cause of action that did not exist at the time the action was filed. In other words, an amendment which tends to create a suit that was not in existence at the time of filing of the writ will not be granted. See Pedro St. Mathew Daniel v. Bamgbose 19 NLR 7 and Iweka v. SCOA [2000] 15 WRN 06. However, an amendment may be allowed in the pleadings even if the amendment will add to or substitute a new cause of action provided that the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which the Plaintiff has already claimed in the action. What the defendant’s application for amendment has done is to introduce a new cause of action (the counterclaim) which was not there when the claimant first filed his case. To allow the said amendment now is not only to contravene the Rules of this Court but as argued by the claimant, it will be that this Court is assisting the defendant evade the payment of Court fees that would be due and payable. The end effect is that the claimant would thereby be overreached in terms of the prosecution of his case and claim against the defendant. Additionally, the Court of Appeal decisions in Alhaji M. Balogun v. Panalpina World Transport (Nig.) Ltd & anor [1999] 1 NWLR (Pt. 585) 66 at 77 – 84 and Ashimiyu Oduola & ors v. Chief A. B. Ogunjobi [1986] 2 NWLR (Pt. 23) 508 at 509 as well as the English cases of Mabro v. Eagle Star and British Dominions Insurance Company Ltd [1932] All ER Reprint 411 at 412 – 413 and Life v. Peasley [1980] 1 All ER 623 at 640 – 643 hold that a cause of action cannot be added to an action where if this is allowed it would thereby deny the opposing party the benefit of a valid defence as the Court has never treated it as just to deprive a defendant of a legal defence. The claimant drew the Court’s attention to Order 9 Rule 1 of the NIC Rules 2007. I agree with the argument of the claimant that to allow the defendant’s application for amendment would mean that the time limit of 14 days laid down under the Rules of this Court would be defeated. On the whole, I agree with the submissions of the claimant that the defendant’s application has no merit for the reasons argued. The defendant’s application is nothing but a ploy to waste time and overreach the claimant; and here I note that from the records several applications were filed by the defendant the effect of which substantially delayed the hearing of this case before it was eventually transferred to this Court and trial is to start de novo. The said application is accordingly dismissed. The matter shall, therefore, proceed to trial. Ruling is entered accordingly. Cost is put at Fifty Thousand Naira (N50,000) only payable by the defendant to the claimant before the next adjourned. …………………………………… Hon. Justice B. B. Kanyip, PhD