IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YOLA JUDICIAL DIVISION
HOLDEN AT YOLA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK
ON THE 15TH DAY OF MAY, 2019
SUIT NO: NICN/YL/02/2016
MAUNDIS BIKA NAKAI CLAIMANT/RESPONDENT
FIRST CITY MONUMENT BANK LIMITED DEFENDANT/APPLICANT
J. Olu Adebambo with F.O.Oluwadare for the claimant/respondent
F.J. Ifegwu for the defendant/applicant
This ruling is predicated upon a motion on notice dated 4/5/2018 and filed on 7/5/2018 seeking to amend paragraphs 8 and 9 ( c ) of the statement of defence.
2. STATEMENT OF RELEVANT FACTS
The claimant filed a complaint dated 19/2/2016 before this court. The defendant filed a statement of defence on 25/10/2016. The claimant filed an amended complaint on 25/1/2018.The claimant testified on 13/3/2018 and was cross examined on 11/4/2018 and the matter was adjourned to 9/5/2018 for defence but on 7/5/2018, the defendant filed this motion to amend its paragraphs 8 and 9( C ) of the statement of defence. The claimant/respondent filed a counter affidavit on 16/5/2018.
3. CASE OF THE APLLICANT
In the 6 paragraph affidavit in support of the application, the applicant deposed that in the cause of proof reading and corrections, there was a typographical error inserted in the defence, wherein the defendant purportedly in paragraph 8 and 9c of the statement of defence filed on the 25th day of October, 2016 erroneously stated as follows:
“The defendant admits paragraph 11 only to the extent that the claimant was advised of a monetized annual leave amount of N783, 278.85(Seven Hundred And Eighty Three Thousand, two Hundred And Seventy Eight naira Eighty Five Kobo) and further states that same was to be paid along with his exit entitlements (if any) but was inadvertently omitted during his end of service computation”
And that typographical error was repeated in paragraph 9c of the same statement of defence. That the amendment sought is to bring the defendants defense in line with the evidence before the court and instruction of the defendant.
In his written address, learned counsel submitted in paragraph 1.1 that amendment sought cannot (sic) effectively be accommodated without springing any surprise on the defendants nor will they be prejudiced by its grant. That where the essence of the application is for the purpose of bringing before the Court for determination the real questions in controversy between the parties this Honourable Court is amply empowered to grant same. In the instant case and flowing from the affidavit evidence before the court, It is apparent that even though the respondent had properly briefed their Counsel, in the preparation of the defence the Counsel had mistakenly drafted the defence and admitted paragraph 11 in paragraph 8 and 9c of the defendant’s defence. It is submitted that the inadvertence of Counsel will not be visited on the litigant. Counsel also relied on Order 26 Rule 1 (a) and (b) of the Rules of this Court.
4. CASE OF THE RESPONDENT
In his 11 paragraph counter affidavit, the claimant respondent deposed that the defendant’s averment in paragraphs 8 and 9c of its statement of defence dated 24th October 2016 and filed on 25th October 2016 is not a typographical error but a deliberate, positive and unequivocal admission of part of the claimants claim. That the defendant/applicant has been consistent in its deliberate, positive and unequivocal admission of the said paragraphs in paragraph 9 of witness (Omotola Adeyemi) statement on oath dated 25th October 2016. That he has since closed his case on 11th April 2018 and the paragraphs the defendant/applicant is seeking leave to amend are part of his evidence before the court. That in spite of the specific order of this Hon. Court on 25th January 2018 mandating the defendant/applicant to file its amendment within 14 days if any, the defendant applicant has failed or refused to do so.
In his written address, learned counsel submitted that the applicant’s motion on notice dated 4th May 20 1 8 and filed on 7th May 2018 is incompetent and an abuse of court process because the applicant has failed to attach the proposed amendment to the affidavit in support of the motion. Instead, the applicant attached an Amended Statement of defence and the amended paragraphs of the statement of defence are not marked as required by law. Even the copy of the Amended Statement of defence attached to the affidavit is not marked as Exhibit as required by law, Contrary to order 26 Rule 4 of the Rules of this court.
That the applicant was specifically given l4 days within which to file its amended statement of defence if any, by the order of this Court on 25th January 2018. But the applicant has filed this application long after the claimant respondent has closed his case and a period of over 100 days after the court order.
That Order 26 Rule 1 (2) provides thus:
An amendment may be refused where it would-
a …. Cause injustice to the other party or where the application for amendment is brought mala fide;
d. amount to over-reaching the other party or an abuse of court process.
That the claimant/respondent has long closed his case and the paragraphs sought to be amended has formed part of the evidence and indeed the case of the claimant before the court. This is a blatant attempt by the defendant to turn around to deny what it has expressly admitted. Thus, this application is in bad faith and granting same will amount to overreaching the claimant.
In response, the applicant counsel submitted that it can amend at any time and especially now that the matter is starting de-novo.
5. COURT’S DECISION.
This case started in the Jos Judicial Division before my lord Gwandu .J and then before my lord N.C.S Ogbuanya .J in Yola Judicial Division and it came up de novo before me on 13/5/2019.
Paragraph 11 of the original complaint filed on 19/2/2016 reads;
11.The claimant avers that outstanding monetized annual leave allowance as at December 2009 is in the sum N783, 278.85 (seven Hundred and Eighty Three Thousand, Two Hundred and Seventy Eight Naira Eighty Five Kobo) and the defendant has failed or refused to pay same in spite of its undertaking to pay same along with the claimant’s terminal benefits.
The amended statement of facts dated and filed 15/1/2018 had this averment as paragraph 15 and it was not in any way amended.
The statement of defence sought to be amended is the one dated 24/10/2016 and filed on 25/10/2016 with an unsigned witness statement on oath of one Omotola Adeyemi. It responded to paragraph 11 of the original claim in its paragraphs 8 and 9c thus;
The defendant admits paragraph 11 only to the extent that the claimant was advised of a monetized annual leave amount of N783, 278.85(Seven Hundred And Eighty Three Thousand Two Hundred And Seventy Eight Naira Eighty Five Kobo) and further states that same was to be paid along with his exit entitlements (if any) but was inadvertently omitted during his end of service computation.
This was also repeated in paragraph 9 of the unsigned witness statement on oath of Omotola Adeyemi.
On the 14/10/2017, one U.D. Silas Esq. of D. D. Azura & co. No. 22/23 Bekaji Road, Jimeta Yola filed another memorandum of appearance for the defendant and filed a statement of defence on 30/10/2017. Paragraphs 8 thereof simply deny paragraph 11 of the claim without more and it has a signed witness statement on oath of one Emmanuel Sunu. There is no notice of change of counsel to that effect and no reference has been made to this process by either party. I take it that the said counsel never came into the matter.
The contention that the applicant had 14 days from 25/1/2018 to file an amendment to the amended statement of facts dated and filed on 15/1/2018 and so is out of time does not hold water as the amended statement of facts did not amend the original paragraph 11 which is now paragraph 15.
Similarly, the argument that the proposed amendment was not exhibited and the amended paragraphs were not highlighted cannot survive where equity prevails. Prayer 1 of the application specifically mentions paragraphs 8 and 9 c as the paragraphs sought to be amended; those paragraphs need not to be further highlighted. The proposed amended statement of defence has been attached to the motion and a fresh copy filed. The fact that it was not titled “proposed amended statement of defence” but simply “amended statement of defence”; or that it was not marked as “exhibit A” is not enough to render the said process or motion incompetent, that will be against the spirit of equity which this Court is enjoined to follow.
This application for amendment was filed after the claimant had closed his case. It indeed seeks to deny what was expressly admitted intentionally and not a typographical error as alleged. But for the fact of the case has started de novo, this is an act of changing the goal post in the middle of the game.
However, in view of the fact that the matter has come up de novo before another coram, these facts no longer count since it is now a new trial and the case is now the same as if it had not been heard before. See
An amendment is aimed at doing substantial justice between the parties. See OGUMA ASSOCIATED COMPANY (NIGERIA) v IBWA (1988) LPELR- 2318 (SC).
The grant or refusal of an application for amendment is at the discretion of the Court. In exercising my discretion, it is my view that since both parties are agreed on the amount of the said annual leave for 2009 as claimant’s entitlement and the claimant asserted in the negative to the effect that he was not paid but the defendant now asserts the affirmative that the claimant was paid, the burden of proof lies on the defendant who asserts the affirmative to prove such payment if the said allowance was paid. See section 139 of the evidence Act 2011 and
MR. BABATUNDE HARDING & ANOR v. THE ADMINISTRATOR GENERAL AND PUBLIC TRUSTEE OF LAGOS STATE & ANOR (2016) LPELR-40990(CA) where the court of appeal held;
Now, it is the Respondents who allegedly sold the property to the alleged buyer and had also alleged that the property in the subject matter no longer vest in them having allegedly divested themselves of same in favour of the alleged buyer, one Sir Kofo Abayomi and thus the burden of proving this assertion is on the Respondents and not the Appellants. The law is and has always been that it is he who alleges the affirmative that carries the burden of proving what he positively asserts and not for he who asserts the negative, which is incapable of proof. This has been the position of the law from antiquity and as abound in several jurisdictions. See Elemo v. Omolade & Ors. (1968) NMLR 359, See also Atane V. Amu (1974) 70 SC 237; Fashanu V, Adekoya (1974) 6 SC 83; Onyenge V. Ebere 18 NSCQR (Pt.11) 789; Vulan Gases Ltd, V .Gesellschaft Fur Ltd.(2001) 9 NWLR (Pt.719) 610.
Since it is not the pleading but the evidence that will determine the case and the burden of prove lies on the defendant, the interest of justice is better served if the defendant is given the opportunity to prove payment of the said monetized annual leave amount of N783, 278.85 to the claimant in the circumstance of this case which has started de novo and the claimant still has a right of reply if needs be.
I accordingly exercise my discretion in favour of the applicant and grant the application as prayed.
Leave is here granted for the defendant to amend it paragraphs 8 and 9c of the statement of defence and same is deemed as properly filed and served today. The claimant has a right to file any reply if needs be within 7 days.
This is the ruling of the court and it is entered accordingly.
HONOURABLE JUSTICE K.D.DAMULAK
JUDGE, NICN, YOLA.