IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE
DATE: 29TH APRIL, 2019 SUIT NO: NICN/PHC/114/2013
MR. JOSEPH EDOBOR ----------- CLAIMANT/APPLICANT
1. PORT HARCOURT ELECTRICITY
DISTRIBUTION COMPANY LTD
2. NIGERIAN ELECTRICITY LIABILITY
MANAGEMENT COMPANY LTD/GTE
O. V. Saduwa for the Claimant/Applicant
Samuel Anwe for the 1st Defendant/Respondent
Adekunle Aribisala with C. O. Nwokike for the 2nd Defendant/Respondent
This Ruling is in respect of the Claimant/Applicant’s Motion on Notice dated 22nd of January, 2019, and filed on the 23rd of January, 2019, praying the court for the following reliefs:
1. An Order of this Honourable Court allowing the Claimant/Applicant to further amend his Complaint and Statement of Claim in this suit in line with the Memorandum/Schedules of Amendment which Proposed Further Amended Complaint and Further Proposed Amended Statement of Claim are attached to this Motion as Exhibits A, A1, A2 and A3 respectively.
2. An Order of this Honourable Court granting leave to the Claimant/Applicant to file Witness Statement on Oath and deeming same as properly filed and served, having paid the appropriate filing fee and which is hereby attached as Exhibit A4.
3. And for such orders or other orders as this Honourable Court may deem fit to make in the circumstance(s).
The sole ground for the application is that, “the facts disclosed before this Honourable Court, the 1st and 2nd Defendants being the successors-in-title of the Power Holding Company of Nigeria Plc, are jointly liable to the claims of the Claimant hence there is the need to reflect same in the pleadings.”
In support of the application is an Affidavit of five (5) paragraphs deposed to by one Pretty Beesor, the Litigation Secretary in the Law Firm of Ochuko V. Saduwa & Associates, the Solicitors to the Claimant/Applicant in this suit. Annexed to the Application are five (5) documents marked as exhibits A, A1, A2, A3, and A4.The Claimant/Applicant also filed along with the Application a Written Address wherein the Claimant/Applicant’s counsel formulated a lone issue for the determination of this court, to wit:
“Whether the Claimant/Applicant’s application for leave to amend its Complaint and Statement of Claim can be granted in the interest of justice.”
While arguing this lone Issue, the learned counsel for the Claimant/Applicant referred the court to the provisions of Order 26 Rules 1 (1) (a) and (b) of the Rules of this court 2017, as well as the case of NDIC V. Oranu (2001) 18 NWLR (Part 744) 183 at 208, paragraphs D – F, and submitted that, amendment can be granted by the court at any time of the proceedings but before determination of the real issues in controversy if the amendment sought is not for the purpose of making a new case or if it would not embarrass or overreach the opposite party.
That the amendment sought by the Claimant/Applicant herein is meant for the determination of the real issues in contention, and that no new case has been introduced by the Claimant/Applicant. See paragraph 5(i) (ii) of the supporting affidavit.
The court is therefore urged to grant the application in the interest of justice.
It is pertinent to note that, while the 1st Defendant did not oppose the application, the 2nd Defendant in opposition to the Application filed a Counter – Affidavit of eleven (11) paragraphs deposed to by Chimauche Nwokike, an Associate in the Law Firm of Melchizedek & Co. counsel within jurisdiction for the Law Firm of Aboyade & Co. for the 2nd Defendant/Respondent on the 31st of January, 2019. Filed along with the Counter-Affidavit is a Written Address wherein this sole issue has been distilled for the determination of the court, to wit: Whether the Claimant/Applicant is entitled to the relief of further amendment sought in the circumstance of this case.
While arguing the lone Issue, learned counsel to the 2nd Defendant/Respondent submitted that, the amendment sought by the Claimant seeks to give the suit a new outlook thereby undermining the 2nd Defendant’s defence before the court. That the amendment sought has been necessitated after the Claimant had gone through the 2nd Defendant’s defence, thereby trying to circumvent the defence of the 2nd Defendant. It is therefore the contention of the 2nd Defendant that if the amendment sought is granted it will over-reach the 2nd Defendant. See Order 26 Rule 1(1) of the Rules of Court, 2017. Akaninwo V. Nsirim (2008) LPELR-321; Ajose V. U.A.C.N.P.D. Co. Plc (2007) (Vol.27) WRN 189 at 198, lines 25-30; Yusuf V. Adegoke & Anor (2007) LPELR-3534; Belonwu V. Isokariairi & Sons (1994) 7 NWLR (Pt. 358); Ojah V. Ogboni (1979) 1 All NLR 346; Okongwu V. NNPC (1989) 4 NWLR (Pt. 115); Adetutu V. Aderohunmu & Others (1984) NSCC 389, and CCG V. Idorenyin (2015) 13 NWLR (Pt. 1475).
That the 2nd Defendant had pleaded in paragraph 9 of its Statement of Defence that the Claimant’s dismissal from NEPA predates the PHCN’s Conditions of Service of 2010, and that the said Conditions of Service is not applicable to the instant suit. That by paragraphs 8 and 9 of the Proposed Further Amended Statement of Claim (exhibit A3) the claimant is seeking to surreptitiously circumvent paragraph 9 of the 2nd Defendant’s Statement of Defence thereby changing the character of the case.
The court is therefore urged to refuse the Application and dismiss same with substantial cost in favour of the 2nd Defendant.
The Claimant/Applicant filed a Further Affidavit of 13 paragraphs deposed to by one Josephine Egerebu, together with a Written Reply on Points of Law dated 11th February, 2019, filed on 12th February, 2019, but deemed as having been properly filed and served on 14th March, 2019. Annexed to the Further Affidavit is one (1) document marked as exhibit A.
It is submitted in the Written Reply on Points of Law that, contrary to the arguments of the 2nd Defendant, it is clear from exhibit ‘A’ annexed to the application (the Memorandum of Amendment) that, what the Claimant seeks to achieve by the amendment sought is to reflect the joint liabilities of the Defendants given that they are the successors-in-title to the Power Holding Company of Nigeria Plc which had divested itself of its assets and liabilities and vested same jointly on the Defendants. That the amendment sought will not in any way over-reach the 2nd Defendant, and is also not meant to introduce or present a new case, but to bring before the court the real issues in controversy between the parties for a just determination of the suit. See Akaninwo & 4 Others V. Nsirim & 3 Others (supra).
The court is therefore urged to discountenance the 2nd Defendant’s submissions and grant the application.
I have carefully considered the prayers sought by the Claimant/Applicant in the Application, the reasons adduced for seeking to further amend the Complaint, the particulars of amendment contained in the Memorandum/Schedule of Further Amended Complaint, the Memorandum/Schedule of Further Amended Statement of Claim, the Proposed Further Amended Complaint, the Proposed Further Amended Statement of Claim as well as all the other exhibits annexed to the application.
In paragraph 3(i)(ii) of the affidavit in support of the Motion on Notice, the Claimant/Applicant in the bid to justify the need for the amendment stated that from the facts already disclosed before the court both the 1st and 2nd Defendants are the successors-in-title of the Power Holding Company of Nigeria Plc, and jointly liable to the claims of the Claimant. That the amendment sought is only meant to reflect in the pleadings the joint liabilities of the 1st and 2nd Defendants and nothing more.
In paragraph 11(iii) of the Further Affidavit it was further deposed that both the 1st and 2nd Defendants are one and the same in the transaction leading to the instant suit being the successors-in-title to the Power Holding Company of Nigeria Plc.
The law is trite that the basic aim or purpose of amending a court process is to correct errors in the said court process so as to prevent the justice of the case from being defeated due to such errors or inadvertence of counsel. See Jessica Trading Co. Ltd. V. Bendel Insurance Co. Ltd (2003) LPELR-1608(SC).
See also the case of Chief Aaron Jimmy Akpan V. Oruk Anam Traditional Rulers Council and 7 Others (2015) 15 NWLR (Part 1482) 431 at 440 – 441, paragraphs G – D, where the Court of Appeal quoted with approval the decision of Mahmud Mohammed JSC (as he then was) in the case of Adewumi & Anor V. A.G. Ekiti & Ors (2002) 9 NSCQR 66 at 90 – 91; (2002) 2 NWLR (Pt. 751) 474 as follows on the principles guiding amendment of pleadings:
“Some of the guiding principles for granting amendments of pleadings include, the consideration of the justice of the case and the rights of the parties before the court, the duty of a Judge to see that everything is done to facilitate the hearing of any action pending before him and whenever it is possible to cure and correct honest or unintentional blunder or mistake in the circumstances of the case and where such amendment will help to expedite the hearing of the action without injustice to the other party. Furthermore, amendments are more easily granted whenever the grant does not necessitate the calling of additional evidence or the changing of the character of the case, and in that aspect no prejudice or injustice can be said to result from such amendment. See Wiri v. Wuche (1980) 1 – 2 SC 1; Afolabi v. Adekunle (1983) 2 SCNLR 141; Akinkuowo v. Fafimoju (1965) NMLR 349; Oguntimeyin v. Gubere (1964) NMLR 55; Dominion Flour Mills Ltd. V. George (1960) LLR 55, reported as George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117, Adetutu v. Aderohunmu (1984) 1 SCNLR 515; Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt. 1) 409, Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214; Akoh v. Abuh (1988) 3 NWLR (Pt. 85) 696; England v. Palmer (1955) 14 WACA 659; Metal Construction (W.A.) LTD. V. Migliore (1979) 6 – 9 SC 63.”
Having considered the particulars of the amendment sought, it is clear that the Claimant/Applicant seeks to add the phrase “sued severally and jointly” to the names of the Defendants in the originating processes and replace ‘1st and 2nd Defendants’ with the word ‘defendants’, as well as the word ‘its’ with the word ‘their’ in all the originating processes.
The learned Claimant/Applicant’s counsel has argued that the amendment sought is not meant to introduce new facts into the case but rather aimed at bringing all the facts to the fore for a just and judicious determination of this suit.
I must state that while the grant of application of this nature is at the discretion of the court, such discretion is not exercised as a matter of course. Such discretion will therefore not be exercised in favour of granting the application where the application is made mala fide; if it will entail injustice to the respondent; if the proposed amendment will cause undue delay or is irrelevant or useless or merely raises a technical point; if the amendment has done some injury to the respondent which cannot be compensated for by cost; if the application is designed to overreach the respondent; and if the amendment will result in a party being confronted with an entirely new case at an extremely late stage of the trial or is in conflict with the evidence already given in the trial. See Chief Adedapo Adekeye and Others V. Chief O. B. Akin-Olugbade (1987) LPELR – 104(SC).
See also the case of The Shell Petroleum Development Company of Nigeria Limited V. Kwameh Ambah (1999) LPELR – 3202(SC), where the Supreme Court per Wali J.S.C. held as follows :
“The principle of law relating to the amendment of pleadings is that it can be granted at any stage of the proceedings provided it does not introduce a new cause of action or will over-reach or is prejudicial to the other party.”
Similarly, Order 26 Rule 1 (2) of the Rules of this Court 2017 provides that an amendment may be refused where it would:
a. Present a completely different case, or cause injustice to the other party or where the application for amendment is brought mala fide.
b. Necessitate the hearing of further evidence especially on appeal
c. Not cure the defects in the procedure sought to be cured or where it is inconsistent and useless.
d. Amount to overreaching the other party or an abuse of court process.
Having examined all the circumstances of this application, I am of the humble view that granting the application will not only prolong the trial of this matter being a 2013 case, but will equally overreach the Defendants and also change the character of the case since pleadings have been closed. The amendment sought which is to make the defendants jointly and severally liable will certainly to my understanding change the character of the case.
The Claimant filed an Amended Complaint on 14th May, 2018, and sequel to that the Defendants filed their consequential Amended Statements of Defence respectively. The Claimant had the opportunity to file a Reply to the Statements of Defence but he did not do that. He rather chose to file the instant application to further amend all the Originating Processes in this suit.
I am therefore not satisfied that the Claimant/Applicant has given satisfactory reasons for the grant of this application. Granting same will no doubt prejudice the Defendants. See Alsthom S.A. & Anor. V. Chief Dr. Olusola Saraki (2000) LPELR-436(SC).
Accordingly, I hold that the application is unmeritorious, same fails and is hereby dismissed.
I make no order as to costs.
Ruling is entered accordingly.
Hon. Justice P. I. Hamman