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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice V. Okobi - Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice 0. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: MAY 7, 2009 SUIT NO. NIC/6/2008 BETWEEN 1) Adedoyin Olayinka 2) AgosuOladapo 3) Segun Isaac Akanni 4) Adeyeye Julius 5) Johnson Adebayo 6) Coker Oludare ………………………………………………..Claimants/Respondents AND Wema Bank Plc ………………………………………………………Defendant/Applicant REPRESENTATION 0. K. Salau Esq., for the claimant. N. C. Okwara Esq., for the respondent. RULING This is a notice of preliminary objection dated 10th September, 2008 brought by the defendant/applicant pursuant to Order 3 Rule 8(2) of the National Industrial Cot Rules 2007 and under the inherent jurisdiction of this court seeking the following: An order that the amended statement of facts filed by the claimant/respondent dated 30th May 2008 be struck out for being incompetent. The ground for the objection is as follows: That the filed amended statement of facts is incompetent and, therefore, this court lacks jurisdiction to hear it as the leave of this honourable court was not first obtained in accordance with the rules of the court. Parties agreed to argue the objection on record and consequently exchanged written addresses. The defendant/applicant’s written address is dated 21st October 2008 while that of the claimants/respondents is dated 20th November, 2008. The defendant/applicant filed no reply on points of law. In its written address the defendant/applicant framed three issues for the determination of this court which are as follows: (1) Whether the claimant can file amended statement of facts without obtaining the leave of this honourable court to do so (2)Whether Order 3 Rule 3 of the National Industrial Court Rules can be read in isolation of order 3 Rule 8(2) of the same Rules. (3)Whether a party is at liberty to choose whether to obey the rules of court or not. On issue 1, the defendant/applicant’s counsel submitted that before the claimants/respondents can amend their statement of facts they must first obtain leave of the court to do so in accordance with Order 3 Rule 8(2) of the National Industrial Court Rules 2007. Therefore, that the amended statement of facts filed by the claimants/respondents is incompetent and must be struck out. Counsel cited the case of Nigeria Security Printing & Minting Co. Ltd v. J.A. Adekoye & ors [2003] 16 NWLR( (Pt. 845) 128 at 151 F — G where the Court of Appeal held that “the words and sentences used in a statute are to be construed in their ordinary and natural meaning”. He also referred to Blacks Law Dictionary edition, which defines a process as “a summons or writ especially to appear or respond in court” and an original process as “a process issued at the beginning of a judicial proceedings” and the case of First Bank Nig. P/c v. May Med Clinic & Diagnostics Centre Ltd & anor [1996] 9 NWLR (Pt. 471)195 CA at 201 D where the Court of Appeal held that: An amendment in the proceeding of a court of law is the correction of an error committed in any process, be it a writ, pleading or both or even some other document such as notice of motion. Counsel submitted that in commencing this action, the claimants/respondents filed Form 1 which is the general form of complaint in accordance with Order 3 Rule 1 and their statement of facts. That both documents constitute the originating process in this matter as provided in Order 3 Rule 8(2) and by virtue f the authority of First Bank Nig Plc v. May Med Clinic, supra, leave of court must first be sort and obtained before the statement of facts can be amended. He further submitted that the claimants/respondents have not given the court or the defendant/applicant the opportunity of considering whether it is material to grant the amendment, also relying on the First Bank Plc case, supra. On issue 2, counsel submitted that Order 3 Rule 3 gives a general power to amend and the claimants/respondents amended almost all the paragraphs of the statement of facts. That the proviso to Order 3 Rule 3 makes it clear that the claimants cannot completely change the cause of action endorsed without amending it and if an amendment in an endorsement will change the cause of action, the claimant must amend it and in so doing, must obtain leave of court in accordance with Order 3 Rule 8(2). He argued further that the provisions of Order 3 Rule 3 must not be read in isolation but in conjunction with Order 3 Rule 8 (2) on leave to amend as they are necessarily complementary to and explain the meaning and scope of Order 3. Counsel then referred to the cases of Humphrey Nwankwo v. Anthony Abazie [2003] 12 NWLR (Pt. 834) 381 at 409 — 410 D — A and Godwin Chime & anor v. Nelson Ude & 3 ors [1996] 7 NWLR (Pt. 401) 379 at 432 II. On issue 3, the defendant/applicant’s counsel submitted that claimants/respondents must obey the rules of court on amendment as provided in Order 3 Rule 8(2) and that the Rules of court are not made for decoration but to aid the court in the attainment of justice. That the amendment made by the claimants/respondents almost touched all the paragraphs of the statement of facts and is, therefore, not minimal to be neglected. He cited the case of Godwin Chime & anor v. Nelson Ude & 3 ors [1996] 7 NWLR (Pt. 461) 379 SC at 427 E — G and submitted further that the procedure for amending a process or pleading is for the claimants/respondents to ask for leave to amend and exhibit the proposed amended statement of facts with all the alterations in the motion paper. That the defendant/applicant should be given the opportunity of either objecting or conceding to the amendment. That this procedure was not adopted by the claimants/respondents and, therefore, the amended statement of facts filed is incompetent and the court lacks the jurisdiction to entertain it. He finally urged the court to strike out the amended statement of facts as it was filed against the principles of fair hearing as contained in section 36 of the 1999 Constitution. Learned Counsel to the claimants/respondents in reply stated that it amended its pleading which is the statement of facts to reflect an admission of the defendant/applicant in its statement of defence filed on the 2lst April 2008. The claimants/respondents then went on to frame one issue for determination as follows: Whether the amended statement of facts dated 30th May 2008 is a competent process of this court with regard to Order 1 Rule 2, Order 3 Rules 1, 3, 4 and 8(2) of the National Industrial Court rules 2007. Learned Counsel to the claimants/respondents submitted that the ammended statement of facts dated 30/05/08 and filed on 03/06/08 without leave of court is a competent process of court having been filed in accordance with Order 3 Rule 3 of the Rules of this court. He argued that giving the above provision its ordinary meaning or interpretation, two different kinds of amendment are provided for by the Rules, which are amendment seeking to alter, modify or extend the claim and secondly, amendment seeking to completely change the(cause of action. That where the claimant seeks to modify, alter or extend its claim, the requirement of Order 3 Rule 8(2) is not necessary as it does not require any amendment of the endorsement on the complaint but where it intends to change the cause of action completely, the provisions of Order 3 Rule 8(2) must be complied with. Counsel then cited the cases of Oduntan v. Akibu [2000] 7 SC (Pt. 11)106, Ajayi v. Mu Adm, Ondo State [1997] 5 NWLR (Pt. 504) 237 and Yusuf v. Co-op Bank Ltd [1994] 7 NWLR(Pt. 359) 676 for the meaning of a cause of action. He submitted that the amended statement of facts when compared with the original statement of facts and the complaint shows that the amendment was a mere alteration, modification and extension of the claim of the claimants without a change of the cause of action. That it is still an action for payment of the claimants/respondents severance package and it only seeks to extend the claimants claim by putting an alternative claim of one year gross payment as its severance package in paragraph 11 of the amended statement of facts. Counsel then referred the court to paragraphs 4, 7 and 11 of the amended statement of facts and paragraph 11 of the original statement of facts and submitted also that the amended statement of facts is competent and does not offend the provisions of Order 3 Rule 8 (2). The claimants/respondents counsel also argued that the submission of defendant/applicant counsel that leave of court is required pursuant to Order 3 Rule 8(2) before the claimants/respondents can amend their statement of facts is misconceived and erroneous in law. That it is important to determine what an originating process is in order to bring its amendment within the purview of Order 3 Rule 8(2) and to this end, he referred to Blacks Law Dictionary 7th edition which defines an originating process as “that process by which a judicial proceeding is constituted. It includes the writs, summons and complaints”. 1 submitted that an originating process as provided in Order 1 Rule 2 means the complaint or any other court processes by which a suit can be initiated. That the operative word is “or” and not “and”. That the statement of facts which accompany a complaint cannot be a process by which a suit is initiated in this court, as a judicial proceeding can only be initiated in this court by way of complaint. He referred to Order 3 Rule I and submitted that by the combined interpretations of Order 1 Rule 2, Order 3 Rules 1 and 4, the statement of facts is not an originating process; it is at best pleadings which cannot on its own initiate or originate an action. That by virtue of Order 3 Rule 4 it is only an accompanying process to a complaint which cannot by whatever interpretation be elevated to the status of commencing or initiating an action, and other interpretation would amount to importing extraneous matter which does violence to the intent and meaning of the aforementioned rules. He cited Egbe v. Alhaji & ors [1990] 1 NWLR (Pt. 128) 546 at 581, PDP v. INEC [1999] 11 NWLR (Pt. 626) 200 at 276, NBN Ltd v. Weide & Co. Nig. Ltd [1996] 8 NWLR (Pt. 465) and Auka v. Lokoja [2001] 16 WRN lii at 132. Counsel also argued that the provision of Order 3 Rule 7 shows the, distinction between originating processes and accompanying documents and submitted that the reason behind the insertion of Rule 7 is to forestall unnecessary delay of cases. That the requirements that a complaint be filed and sealed and that an originating process shall not be altered after it is sealed as provided in Order 3 Rules 1 and 8(2) was intended to show that an originating process is the sealed complaint. He added that it is the sealed complaint that requires an application to be made to the court before it can be altered after it has been sea1ed Counsel also submitted that the case of First Bank of Nig. Plc v. May Med Clinic, supra, cited by the defendant’s counsel is not applicable in this case as it is in respect of an interpretation of the Rules of the 1-ugh Court which is not similar to Order 3 Rule 3 of the NIC Rules 2007. He argued further that assuming but without conceding that the court holds otherwise, that the claimants/respondents’ failure to comply should be treated as an irregularity and direct a departure from the Rules pursuant to Order 5 Rules I and 3 and section 12(2) of the NIC Act 2006 in the interest of justice. Counsel then prayed the court to allow the amended statement of facts dated 30 May 2008 as a competent process of the court in the interest of substantial justice as against technical justice being canvassed by the defendant/applicant as the statement of facts not being an originating process can be amended without leave of court. Finally, he urged the court to dismiss the preliminary objection for being misconceived, erroneous and lacking in merit and that the matter be allowed to proceed to trial in the interest of justice. We have carefully considered the issues raised in the preliminary objection including the arguments and authorities cited by both counsel. From the records, the claimants/respondents filed an amended statement of facts dated 30th May 2008 but filed on the 3rd June 2008 in which paragraphs 4, 5 and 7 of the original statement of facts were amended and an alternative claim also included as paragraph 11(e), (t) and (g). Attached to the amended statement of facts is a list of eight additional documents to be tendered. The documents were also filed together with the amended statement of facts. The claimants/respondents did not apply for leave of court before proceeding to file their amended statement of facts and the additional documents. The question which arises is whether the claimants/respondents can amend their pleadings without applying for leave. In this court, pleadings refer to the statement of facts and the statement of defence. The relevant provision dealing with amendment in the NIC Rules 2007 is Order 3 Rule 8(2) which provides that: “An originating process shall not be altered after it is sealed except upon application to the court.” The combined provisions of Order 3 Rules 1 and 4 which are reproduced hereunder show what an originating process is in this court. 1. Any action for determination by the Court shall be commenced by way of Complaint which shall be filed and sealed. The Complaint shall be in Form I with such modifications or variations as circumstances may require. 4. The Complaint shall be accompanied by: (i) a statement of facts establishing the cause of action; (ii) copies of every document to be relied on at the trial; (iii) list of witnesses to be called. An originating process by virtue of the Rules includes all those processes specified in Order 3 Rules I and 4, which are mentioned above and which are, therefore, Form I (the general form of complaint), statement of facts, copies of documents to be relied on and the list of witness. Order 3 Rule 7 goes on to provide that where a claimant fails to comply with Rules 2, 3, 4, or 5, the originating process shall not be accepted for filing by the registry. The statement of facts which the claimants/respondents counsel has gone on to amend and file and the additional documents to be tendered, which have also been filed, are all part of the originating process required to initiate an action in this court. None of these documents, whi4h make up the originating process, can exist independent of the other for purposes of activating actions in this court; and so none of them can be altered after it has been sealed except by leave of court. A party cannot just amend any of these processes at will without the leave of court. If the argument of the claimants/respondents is to be it would mean that a party can just wake up, for instance, and throw up additional documents, not originally listed in the list of documents to be relied on, into the proceedings without seeking the leave of court. The effect of this is to take the opposing party by surprise and render useless the frontloading objective of the court processes enjoined by the Rules. The claimant’s submission that the amended statement of facts filed without leave of court is a competent process having been filed in accordance with Order 3 Rule 3 does not hold water. The provisions of Order 3 and all its Rules should be read and considered as a whole rather than reading Order 3 Rule 3 in isolation. We agree with defendant/applicant’s counsel that Order 3 Rule 3 must be read in conjunction with Order 3 Rule 8(2). See Humphery Nwankwo v. Anthony Abazie, supra, AG Fed v. Abubakar [2007] 10 NWLR (Pt. 1041’) 1 at 119 — 12 and IMB v. Tinubu [2001] 16 NWLR (Pt. 740) 67 We must state emphatically that there is the need to comply with Rules of court as they are made to be obeyed. See Otu v. ACB [2008] 3 NWLR (Pt. 1073) 179. Moreover, they aid in the attainment of justice to all parties. We, therefore, cannot treat the failure of the claimants/respondents counsel to apply for leave to amend the statement of facts as a mere irregularity. It is trite law and practice that a party seeking to amend its pleadings must apply for leave of court to do so as provided in Order 3 Rule 8(2). Consequently, the amended statement of facts dated 30 May 2008 together with the list of additional documents attached thereto is hereby struck out for being incompetent. We make no order as to costs. Ruling is entered accordingly. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Hon. Justice F. I. Kola-Olalere Judge Judge Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge