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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice V. N. Okobi - Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge DATED: JANUARY 13, 2010 SUIT NO. NIC/53/2008 BETWEEN Mrs. Bola Ojo (nee Aladetimi) - Claimant AND Mokin Micro-Finance Bank Ltd, Ilara-Mokin - Respondent REPRESENTATION 1. Sola Iji, and with him is Mrs. Olubunmi Ologundudu-Adewumi, for the claimant. 2. Miss Bridget Ojomah, for the respondent. RULING The claimant had taken out a complaint against the respondent praying, among other things, the court for - 1. An order directing the respondent to effect payment of severance benefits of the claimant following the premature termination of her appointment by the respondent on February 1, 2008. 2. An order for the payment of the sum of Nine Hundred and Five Thousand, Eight Hundred and Sixty Seven naira, twenty Seven Kobo (N905,867.27) being the claimant's severance benefits and other entitlements following the premature termination of her appointment by the respondent on 1st February 2008. 3. An order directing that the accrued interest component of the entitlement be computed up to and including the date of the final determination of this suit by the court. 4. The respondent may pay the above sum of N905,867.27 to the claimant's Legal Practitioner within the time allowed for appearance and upon such payment, the proceeding shall terminate. Attached to the complaint are the statement of facts, a list of documents to be relied upon and the list of one witness to be called. The respondent entered a conditional appearance, and then filed a statement of defence together with a list of witnesses to be called and a list of copies of documents to be relied upon at the trial. This statement of defence was amended after the leave of court was sought and obtained. However, by a motion dated and filed on 1st July, 2009. The respondent applied for a further amendment to the statement of defence. The motion is brought pursuant to Order 11(1) of the National Industrial Court (NIC) Rules 2007 and under the inherent jurisdiction of the court. This motion is seeking for the following orders - 1. An order granting leave for the [respondent] to amend the Amended Statement of Defence dated 10th March 2009 and filed on same day as underlined in the proposed Further Amended Statement of Defence annexed to the affidavit in support of the application. 2. An order deeming the Further Amended Statement of Defence already filed and served as having been properly filed and served on the claimant. 3. And for such further order or other orders as this court may deem fit to make in the circumstances. Attached to the motion is a 7-paragraphed affidavit sworn to by Felix Ebonikase, the Administrative Manager of the Firm of Fola Akinrinsola, Ojo & Co., the solicitors to the respondent with Exhibits FEl and FE2 attached. The claimant reacted by filing a 9-paragraphed counter-affidavit sworn to on 2nd July 2009 by Olubunmi Ologundudu-Adewumi, a Legal Practitioner in Sola Iji & Co., counsel to the claimant. Relying on all the paragraphs of the affidavit in support of its motion of 1st July 2009 and the exhibits attached, the respondent moved the said motion in terms of the motion papers and then urged the court to grant the application in the interest of justice. The claimant opposed the application of the respondent. Specifically, the claimant contested the reliance placed by the respondent on Exhibit FEl attached to the affidavit in support of the motion on notice. The claimant's objection on Exhibit FEl is based on the fact that the document was constructively made long after the instant case commenced. To the claimant, the position of the law is that such a document made by an interested person long after the commencement of a matter should not be entertained by the court, referring to section 93(1) of the Evidence Act. The claimant then urged the court to reject the amendment being sought as the basis for it is unfounded in law. In replying on points of law, the court asked the respondent to also address it on the effect of filing its motion under Order 11 Rule l, the provision that simply enjoins a party to cite under what Rule a motion is coming under. To the respondent, it is trite law that if a relief is provided for under any written law or common law or equity for that matter, that relief or remedy if properly claimed by the party seeking it cannot be denied to the applicant simply because he has applied for it under the wrong law. That to do so would be patently unjust, referring to the dictum of Fatal Williams, JSC in Falobi v. Falobi [1976] 10 NSCC 576 at 581. The respondent continued that they have gone through the provisions of the Rules of this court and found that the Rules do not make any provision for the amendment of the statement of defence. That this explains why they came under the general provision of Order 11 Rule 1 and under the inherent jurisdiction of the court. That Order 15 of the Rules of this court deals with application of the Rules of this court to general proceedings. That the respondent's coming under the inherent jurisdiction of the court is tantamount to the provision of Order 15, which gives the court power to do substantial justice to the parties. That the court is expected to do substantial justice without undue adherence to the technicalities. That justice can only be done if the substance of the matter is examined because reliance on technicalities leads to injustice. The respondent then went to make submissions on the issue of the stage of proceedings at which an amendment can be made. Since the claimant did not address the court on this issue, the court ruled that the respondent cannot, in replying on points of law, make submissions on that issue. Submissions of the respondent in that regard are hereby discountenanced. On the issue of section 91(3) of the Evidence Act, the respondent submitted that the section deals with admissibility of documentary evidence as it relates to trials and not amendment. That the respondent did not in any way file a memorandum, which is the object of the claimant's objection as a document to be relied on at the trial. That the main and only objective of the said memorandum (Exhibit FE1) is to show the court that indeed they made a mistake and the mistake of counsel should not be visited on the litigant. That it is up to the respondent to prove whatever it alleges in its defence at the level of trial. That cutting off the respondent at this stage will not only amount to or result in injustice but also it will amount to visiting the mistake of counsel on the client, which in the interest of justice ought not to be. The respondent then urged the court to grant its application in the interest of justice. We have carefully considered the application of the respondent to further amend its statement of defence and the submissions of the parties in that regard. We agree with the respondent that the Rules of this court are silent on the question of amendment of defence processes. While Order 3 Rules 3 and 8(2) make provisions relating to the amendment of a complaint or originating process, there is no corresponding provision regarding defence processes. We, therefore, cannot hold it against the respondent for filing the instant motion pursuant to Order 11 Rule 1(1) and the inherent jurisdiction of the court. By Order 15 of the Rules of this court, where no provision is made in these Rules as to practice and procedure or where the provisions are inadequate, the Court may adopt such procedure as will in its view do substantial justice to the parties. In our opinion, therefore, the respondent acted appropriately and so cannot be faulted in coming under Order 11 Rule 1(1). We now turn to the main issue of objection to the motion for further amendment, which relates to Exhibit FE1. Exhibit FE1 is a memo dated November 12, 2008 from the CEO (Chief Executive Officer) to Chief Michael Ade Ojo and is titled, 'Mrs. Bola Ojo (nee Aladetimi vs Mokin Micro finance Bank Ltd'. It is this document that the respondent seeks to bring in by further amending its statement of defence. The objection of the claimant is that this document was generated after the present suit was instituted. Relying on section 93(1) of the Evidence Act, the claimant urged the court not to allow the application for further amendment. Section 93(1) of the Evidence Act Cap. El4 EFN 2004 provides that – Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish, We do not agree with the argument of the respondent that this provision deals with admissibility of documentary evidence as it relates to trial and not necessarily to amendment. The provision deals with admissibility of documents for all intents and purposes. The provision talks of proceedings, not trials. The instant suit was instituted on September 15, 2008 and Exhibit FE1 came about on November 12, 2008, long after the instant suit was instituted. We, therefore, agree with the claimant that Exhibit FE1, on the authority of section 93(1) of the Evidence Act, is inadmissible. We, therefore, cannot grant the prayer of the respondent. The application to further amend the statement of defence hereby fails. The said application is consequently dismissed. We make no order as to cost. 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 Judge