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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge TUESDAY 5th NOVEMBER, 2013 SUIT NO: NICN/ABJ/44/2013 Between: Abel Owotemu Claimant AND Kakawa Discount House Limited Defendant APPEARANCE B.B. Lawal Esq. with E.U. Paul and O. Ben Omotehinshe Esq. For the claimant /respondent Bola Olotu Esq. for the defendant /applicant RULING By a motion on notice dated the 19th of September, 2013 and filed on the same date, the claimant /applicant sought for leave of this court to file a reply to the defendant’s statement of defence and to deem the claimant /applicants reply already filed on 25th June 2013 as properly filed and served. The motion which is brought under order II (I), order 15 and order 26 (13) of the National Industrial Court (NIC) rules 2007 as amended and under the inherent powers of the court is supported by an 8 paragraph affidavit, an Exhibit as proposed reply to defendants statement of defence which the applicant has already filed on 25th June 2013. The claimant applicant also filed a written address in support of his application. In opposition to the motion the defendant filed a 10 paragraph counter affidavit and a written address. Earlier on, the defendant had filed an application by way of motion on notice dated the 16th September 2013 seeking and praying this Honourable court to strike out the claimants reply to the defendants statement of defence for being incompetent. The defendant supported his prayers with a nine paragraph affidavit and a written address. By consent of both counsel and order of court, the two motions dated the 19th of September 2013 and that of 16th September 2013 were taken together. In his written address Counsel to the claimant/applicant formulated a sole issue for determination which is “Whether the applicants (SIC) are (SIC) entitled to the grant of this application for leave to file its reply to the defendant’s statement of defence”. He submitted that such an application is in line with the tenets of justice where the applicant intends to introduce new facts to counter new averments in the defence where he intends to react to defendants counter claim and where he intends to lead evidence in rebuttal of facts canvassed or raised in the defendant’s statement of defence. He posited further that this evidence in rebuttal cannot be led except it is reflected in pleadings. He cited the cases of Olabanji Vs. Ajiboye 1992 1NWLR Pt 218 P.473 Oshodu Vs. Eyifunmi (2000) 13 NWLR PT. 684 page 298 at 327 paragraph B-C. The National Industrial Court (NIC) rules 2007, he continued, did not contain any express provision governing the filing of a reply by a Claimants to a defendants statement of defence but enjoins the court to adopt such precedence as will do substantial justice between the parties in situations where the rules are silent on any procedure before the court. He referred the court to order 15 and order 26 rules 13 of the NIC rules 2007 and the practice direction of this court of 2012. He also urge the court to interpret these provisions of the rules in accordance with the fundamental principles of justice. He cited Oladekoyi Vs. IGP 2011 16 NWLR Pt. 1273 page 406. Counsel went further to say that there cannot be any authority in law to the effect that if a defendant raises fresh issues in his defence the claimant cannot reply to it. He relied on NASALA TEAM ASSOCIATE VS. NNPC 1991 8 NWLR Pt. 212 page 252 at 667 paragraph D-G . Counsel finally urge the court to grant the prayer of the claimant /applicant. In his opposition to the motion of the claimant applicant, Mr. Olotu counsel to the defendant /respondent filed a 10 paragraph counter affidavit and a written address dated 26th September, 2013. In his submission, Mr. Bola Olotu urge the court to discountenance the argument of the claimant/applicant on the ground that no new issues or facts have been pointed out by the applicant to warrant or elicit any reply. He contended that a reply is only necessary where new facts are raised in the statement of defence, or where the defendant has a counter claim or where new facts raised needs a rebuttal since the claimant may lead evidence to that effect. He cited the case of Akeredolu Vs. Akinremi (1989) 3 NWLR Pt. 108 at 164; Oshodi Vs. Eyifunmi. 2000 FWLR Pt. 8, 127 and Olabanji VS. Ajiboye 1992 INWLR Pt. 218 P.473 Counsel submitted that no new issues were raised in the defence to attract any reply by the claimant as issues are joined at the level of the statement of claim and statement of defence. He cited the case of Egesimba Vs. Onuzuruike (2002) 9 SCNJ 46 at 57-58; Obot Vs. CBN 1993 A SCNJ P. 268 at 284-285. Counsel urged the court to refuse the prayers of the claimant /applicant and discountenance the reply to the statement of defence. In his motion dated the 16th of September 2013, counsel filed a 9 paragraph Affidavit in support and written address wherein he urged the court to strike out the reply to the statement of defence filed by the claimant. He submitted that the claimant had not thought it right to seek the leave of the court before filing the said reply; that the reply so filed is alien to the known rules of procedure as the NIC rules 2007 do not contain any provision to that effect. Consequent, such process not recognized by the rules of court cannot be said to be proper; the counsel argued. He call in aid the cases of Aboyeji Vs. Lateju 2012 all FWLR Pt 648 961, Newswatch communication ltd Vs. Attah 2006 All FWLR (Pt. 318) 580; Amuchienwa Vs. Unity Bank Plc 2012 All FWLR Pt. 657, 673. Counsel posited further that until and unless the inherent power of this Honounable court is properly invoked by the claimant /applicant, such reply cannot be recoginsed by the court. Further it was the opinion of Mr. Bola Olotu, Counsel to the defendant that it was only in cases where there is an originating summons that a reply on point of law is allowed by the rules of this court within seven days. This is so because affidavits are the pleadings in originating summons.. He call in aid the case of NNPC Vs. FAMFA Oil Ltd 2012 All FWLR Pt. 635 204 at 239. Counsel emphasized on the filing of the claimant reply without leave and urged the court to strike it out. He relied on Garuba Vs. Omokhodion 2011 All FWLR Pt. 596 537 Azudibia Vs. INEC (2010) All FWLR Pt. 505, 1684 Nwabueze Vs. Nwaora 2005 All FWLR Pt. 272 at 297. I have carefully considered the two motions in this case. I have also read and perused through the supporting affidavits, the counter affidavit and the written addresses of the respective parties. The whole substance of the various arguments can be condensed into a single question which borders on the proprietary or otherwise of the reply to the defendants/ statement of defence filed by the claimant dated the 25th of June 2013. I hereby formulate this question in trying to prefer an answer to the issue in controversy in these motions. “Can a claimant file a reply to the defendants statement of defence”? This lone issue for determination, though very simple calls for the application of known principles of justice, the rules of this court and the application of tenets of logic, reason and common sense. It was the contention of the defendant counsel that the inherent power of the court has not been invoked by the claimant to warrant the reception of the reply duly filed. It is my respectful view that the motion so moved by the claimant seeking for leave to regularise the said reply has taken care of that argument. Moreover the motion was brought pursuant to the inherent powers of the court. Consequently, it is my respectful view that the powers inherent in this court has been properly invoked by the claimant . See Enakhimion Vs. Edo Trspt Ltd 2006 All FWLR Pt. 334, 1882 at 1891. By the provision of order 26, (13) of the rules of this court the court is enjoined to adopt such procedure as will in its view do substantial Justice between the parties in a situation where there is a lacuna, a void or gap; ie where there is no express provision as to a particular procedure. In this matter, parties are ad idem as to the fact that there is no express provision in the rules as to the filing of a reply. By the provision of section 12 (2) (b) of NIC Act 2006. This court has the inherent powers to regulate its proceedings and procedure as its think fit in the wake of a lacuna. Moreover, by the express provision of section 254 (D) (1) of the constitution of the Federal Republic of Nigeria as amended, this court in exercising any jurisdiction conferred on it SHALL have all the powers of a High Court. The combine effect of the provision of order 26(13) of NIC rules 2007, section 12 (2) (b) of the NIC Act 2006 and section 254 (d) (1) of the 1999 constitution of Nigeria as amended enjoins me to exercise my powers in accordance with the dictates of justice. Both counsel submitted before me that it is only 3 grounds that permits the filing of a reply to statement of defence by the claimant; they listed them as (1) When the defendant raises new facts in his defence and the claimants intends to reply (2) When there is a counter claim by the defendant and (3) When the claimant intends to lead evidence in rebuttal of the defendants new issue. The defence counsel contended that there are no new issues raised in his defence. The claimant in his paragraph 4 (all sub paragraphs inclusive)of the affidavit in support of his motion for leave, deposed to the fact that he intend to react to the new issues raised and in consequence of that he filed a thirty five paragraph reply to the statement of defence. It is my candid and humble opinion based on the principle of fair hearing that I cannot shut the claimant out from presenting his case for determination by this court; moreso that the claimant has filed a 36 paragraphs witness statement on oath in reply to the defendants statement of defence, deposed to by the claimant himself. See the case of Ekpeto Vs. Wanozho 2004 18 NWLR (Pt. 905) 394 at 411 paragraph A-B. On the issue of overreaching canvassed by the defence counsel, the rules of this court has made ample provisions and created the instrumentality of an amendment to pleadings which can be appropriately explored and exploited more so when the rules governing amendment is so elastic subject of course to the well established limitations without necessarily compromising his defence. In the case of Akeredolu Vs Akinremi supra it was decided by the Supreme Court among other thing as follows; “---- where because of the defence filed, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact not arising out of the two previous pleadings, he shall in such circumstances file a reply as he may not lead evidence of any material facts he had failed to aver in his pleadings” It is against the background of the fact that parties are bound by their pleading that a reply of this nature should be allowed. See Agala Vs. Okusin 2010 10 NWLR (Pt. 1202) at 412 per Mukhtar JSC: “Purpose of pleadings is to avoid springing surprise on the other party” at P. 436 Paragraph B-0. In view of all the reasoning stated above in this ruling, I am inclined to grant the prayers of the claimant applicant. Accordingly leave is hereby granted to the claimant/applicant to file his reply to the defendants statement of claim; the reply so filed on the 25th of June 2013 and served on the defendant with the witness statement on oath is hereby deemed as properly filed and served. The motion of the defendant dated the 16th of September 2013 hereby fails and is hereby dismissed. Cost shall be in the cause. ---------------------------- - Hon. Justice P.O Lifu (JP.) Judge