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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Thursday 17th July, 2014 SUIT NO: NICN/ABJ/96/2013 Between: Andy Geoffery Claimant AND Setraco Nig Ltd Defendant REPRESENTATION Parties absent; Uche Nworah Esq. for the claimant, L.O. Fagbemi Esq. for the Defendant; RULING By a motion on notice dated the 28th of February 2014 and filed on the same date, the claimant /applicant prayed the court for the following orders. (1) Extending the time within which the claimant / applicant shall file and serve his reply to the statement of defence and other accompanying documents out of time. (2) Granting leave to the claimant/applicant to file and serve additional witness statement on oath as strictly contained in exhibit B attached to the motion (3) Deeming the complainant /applicant reply and additional witness statement on oath annexed to the affidavit as exhibit ‘A’ and ‘B’ respectively as properly filed and served. The application is predicated on 6 grounds and is supported with an affidavit of 10 paragraphs and a written address; wherein the claimants counsel formulated a sole issue for determination namely whether given the circumstance of this case the application should succeed. Mr. Muoemeka K.C, counsel to the claimant/applicant who predicated his application under order 11 rules (1) and (2) order 25 rule 4 of the National Industrial court (NIC) rules 2007, the practice direction of 2012 of this court and under the inherent jurisdiction of the court moved the court to grant all the prayers in the interest of fair hearing principle guaranteed by the constitution of the Federal Republic of Nigeria (FRN) 1999 as amended. He also posited that this court has the power to make orders in the interest of justice which are considered necessary for doing justice to any case before it whether or not the court has been expressly asked for or not; the court, counsel submitted further is enjoin to abridge or extend time within which a person is allowed to do any act or take any step in the proceedings; Counsel urged the court to allow the claimant file his reply and additional witness statement on oath in the interest of justice so that the suit can be decided on the merit and to avoid a miscarriage of justice. Counsel cited the cases of Ozolo Vs. Ogolo 2001 9 WRN 29 at 59; Chief Ntukidem Vs. Chief Asuquo 1986 5 NWLR Pt. 45 at 909 among other cases. Counsel finally urge the court to grant his prayers since the claimant has a good case to present and is not guilty of unreasonable delay. The defendant counsel, B.K. Abu filed a 12 paragraphs counter affidavit and a written address to oppose the application. In his written address, counsel raised a sole issue for determination as follows: Whether this Honurable court can grant this present application. Counsel argued that the essence of a reply is to react to new issues raised in the defence and not to raise fresh issues for the first time in the reply as doing so will amount to having a second bit at the cherry which will adversely overreach the defendant. Counsel referred to paragraphs 3, 5 (b) 11, 13, 16 (a), (e) (f) (g), 17, 18, 19, 21, 22 and 23 (as fresh issues) of the proposed reply as fresh issues of which the defendant never raise in the defence. Counsel contended that if this application is granted, counsel to the defendant will not have the opportunity of responding to those assertions or pleaded facts. Counsel urged the court to strike out those paragraph raising fresh issues; as there must be an end to litigation. Counsel cited the case of Obot Vs. CBN 1993 8 NWLR Pt. 310 14 at 159. I have carefully gone through the application and the argument of both counsels for the parties in this motion; It is on record that a new counsel who first took over the claimant case has filed this motion for extension of time to regularise the claimants reply and to file additional witness statement on oath. The crucial and critical question to determine is whether or not the court, in it exercise of discretionary powers should grant this application. Judicial discretion should also be exercise judiciously. The national Industrial Court rules of 2007 do not provide for the filing of a reply. By order 26 rules 13 of the rules of this court, the court is given a large discretionary powers as follows: Where no provision is made by these rules or any other written law, the court shall adopt such procedure as will in its view do substantial justice between the parties. By section 254 (d) (i) of the 1999 constitution of the Federal Republic of Nigeria as amended, it is provided as follows; “For the purpose of exercising any jurisdiction conferred upon it by this constitution as may be conferred by an Act of the National Assembly the National Industrial Court shall have all the powers of a High Court” By section 12 (2) (a) of the National Industrial Court Act 2006, this court, in exercising the jurisdiction vested upon it may regulate its procedure and proceedings as it deem fit in the interest of justice. By section 37 (3) of the trade dispute Act Cap T18 LFN 2004 this court is not bound to act in any formal way but may regulate its proceedings and procedure as it think fit in the interest of justice. A cursory look at the defence and the claim of the parties will reveal that there is no counter claim and the claimant had earlier filed an amendment to the claim. The purpose of pleading is to avoid springing of surprises on the other party. See the case of Agala Vs. Okusin 2010 10 NWLR Pt. 1202 at 412. There are three mains grounds that permit the filing of a reply to statement of defence by the claimant these are: (1) When the defendant raises new facts in his defence and the claimant intend to reply (2) When there is a counter claim by the defendant and (3) When the claimant intend to lead evidence in rebuttal of the defendants new issues In this application at hand, there appear to be no new issues raised per se and there is no counter claim. Consequently the need for a reply appears remote. See the cases of Akeredolu Vs. Akinremi 1989 3 NWLR Pt. 108 at 164 Oshodi Vs. Eyifunmi 2000 FWLR Pt. 8 127 and Olabanji Vs. Ajiboye 1992 I NWLR Pt. 218 at 473 In all the authorities cited above, the contention of the parties and the provision of the rules of this court and the constitution of the Federal Republic of Nigeria, what should be paramount in the mind of a trial judge or any other judge for that matter is the overriding interest of justice anchored on the age long principle of fair hearing as enshrine in section 36 of the constitution of the Federal Republic of Nigeria (FRN) 1999. The claimant has canvassed that there are no issues raise as the proposed reply is a reply to the issues raised in the statement of defence. The claimant has equally followed this up by filing an additional witness statement on oath in which he prays the court to deem as properly filed and served even though it is an exhibit to the motion under consideration. In the case of Akeredolu Vs. Akinremi supra, it was held by the Supreme court inter alia as follows: “where because of the defence filed the plaintiff proposes to lead evidence in rebuttal or 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 this background that the age long principle of parties being bound by their pleadings is anchored on. Consequently a reply of this nature should be allowed. 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 pleading which can be appropriately explored and exploited moreso when the rules governing amendment is so elastic, subject of course to the well established limitations without necessarily compromising the defence. In my considered view and based on the provisions of order 26 rule 13 of the rules of this court, section 254 (d) (1) of the 1999 constitution as amended, section 12 (2) (a) of NIC 2006 and section 37 (3) of the Trade dispute Act Cap T 18 LFN 2004, I have decided to fill that gap, that void or Lacunae by exercising my discretion in favour of the grant of the prayers of the claimant /applicant; Accordingly leave is hereby granted to the claimant/applicant to file and serve his reply to the defendants statement of defence and the additional witness statement on oath in the next seven days from today. Prayer 3 of the claimant applicant fails as the court cannot deem an exhibit. Ruling is entered accordingly and there is no order as to cost. ----------------------------- Hon. Justice P.O Lifu JP. Judge