IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: JUNE 26, 2019 Suit No: NICN/YEN/129/2015
MR. OKECHUKWU AJURU ………….. CLAIMANT/RESPONDENT
ASPHALT UNITY CONSTRUCTION LTD
MANAGER ALEX DEFENDANTS/APPLICANTS
MR. UCHECHUKWU AMADI
Mr. C.B. Osila Esq for all the Defendants/Applicants except the 6th Defendant
The Claimant filed this action against the Defendants vide a Complaint dated 4th November, 2015 and filed on the same date. The Claimant alongside filed other accompanying processes. The claims of the Claimant are as follows:
A DECLARATION that the Claimant’s appointment was unlawfully terminated by the Defendants.
A DECLARATION that the Claimant is entitled to his salaries from the month of the unlawful termination to the month Judgment is delivered by this court.
One Hundred and Fifty Million Naira (N150,000,000.00) only as general, exemplary and aggravated damages for the permanent physical disability suffered by the Claimant in the course of his duty as a staff of the 1st Defendant, pain, sufferings, anguish and the unlawful termination of the Claimant’s appointment in the 1st Defendant company.
One Hundred Million Naira (N100,000,000.00) for defamation, assault, disrepute and degradation of the Claimant by the 1st Defendant.
The Defendants filed their Memorandum of Appearance on the 14th June, 2018 with the exception of the 6th Defendant. And alongside also filed their Statement of Defence alongside other accompanying processes.
The Claimant also on the 18th July, 2018 filed a reply to the Defendants’ Statement of Defence.
THE DEFENDANTS’ MOTION ON NOTICE FOR AMENDMENT
The 1st, 2nd, 3rd, 4th, 5th and 7th Defendants filed a Motion on Notice on the 5th March, 2019 praying for the following reliefs:
Leave to amend the Statement of Defence by addition of a subparagraph to paragraph 2 as paragraph 2 (a) as underlined in the Proposed Amended Statement of Defence.
2(a). Leave to file and serve additional Witness Deposition of Ms. Anosika Chinyere.
2(b). Leave to amend the List of Witnesses/Documents to include the additional witness and document as shown in Exhibit B.
3. AN ORDER to deem the Statement on Oath of Ms. Anosika Chinyere already filed and served as duly filed and served the appropriate filing fee having been paid.
The grounds upon which this application is based are:
The original Statement of Defence of the 1st, 2nd, 3rd, 4th, 5th and 7th Defendants did not reflect the whole instructions of the said Defendants their counsel ought to have been given.
The proposed amendment is to plead a document about the fact of non-employment of the 6th Defendant by the 1st Defendant already pleaded in paragraph 2 of the Statement of Defence dated and filed on 14/6/2018.
The Applicants have a right to amend their pleading.
The court has the power to allow amendment at any stage of the proceedings.
The Deposition is to enable the 1st, 2nd, 3rd, 4th, 5th and 7th Defendants to tender the said document to prove a fact already pleaded and the amendment will affect the List of Witnesses/Documents to include the new witness and document aforesaid.
The Motion is supported by a ten paragraphs affidavit deposed to by one Lynda Sunday Jaja a Secretary and Litigation Clerk to S.V. Harry & Co, the firm of solicitors representing the Defendants. The Defendants/Applicants also filed a Written Address and an annexure (Exhibit A) which is the proposed amended Statement of Defence of the Defendants.
In the Written Address counsel formulated a lone issue for determination as follows:
Whether the amendment sought will prejudice the Respondents.
It is the submission of the Learned counsel that the document sought to be pleaded concerns the fact of the non-employment of the 6th Defendant which fact had been pleaded in paragraph 2 of the Statement of Defence earlier filed on the 14th June, 2018. That the said amendment if granted will not overreach the respondents, but rather will enable the Defendants to prove their case. He referred to the authority of OJAH VRS OGBONI (1976) 4 SC PG 69. And urged this court to grant the application.
THE CLAIMANT/RESPONDENT’S REPLY TO THE MOTION ON NOTICE
The Claimant/Respondent in opposing this application filed a fourteen paragraphs affidavit on the 8th April, 2019 deposed to by one Anthony Njoku, a Legal Practitioner in the Law Firm of O.J. Ekwu & Co. Law Firm, Solicitors to the Claimant in this suit. The Respondent also filed a Written Address. In the Written Address learned counsel formulated two issues for determination as follows:
Whether the amendment being sought is not brought malafide having suppressed and concealed and/or falsified material facts relevant to the application.
Whether the amendment being sought is not over-reaching the Claimant as he has led evidence in proof of his case and closed same.
Counsel in his submissions made reference to the proceedings of this court on the 14th April, 2016 to show that the Applicant had concealed some vital facts with the aim of misleading this court and urged the court not to consider the averments contained in the affidavit in support of this application and refused the application, same having being brought in bad faith.
On the issue of whether the amendment being sought is not over-reaching, it is the submission of the Learned counsel that by Order 26 Rule 1(2) of the Rules of this court, an amendment of pleadings being sought by a party may be refused if it amounts to over-reaching the other party or an abuse of court process. He said the Claimant having closed his case, if this court go ahead and grant the application may require the Claimant/Respondent to re-open his case and also may require him to amend his Statement of Facts. And referred this court to the case of SUARA YUSUF VRS ADEGOKE & ADETUNDE (2007) 30 NSQR PG 269 at 276; EGWA VRS EGWA (2007) 1 NWLR (PT. 1014) PG 71 at 81. And urged this court to refuse the application.
DEFENDANTS/APPLICANTS’ FURTHER AFFIDAVIT AND REPLY ON POINTS OF LAW.
The Defendants/Applicants filed a 9 paragraphs Further Affidavit dated 23rd May, 2019. The Applicants also filed a Reply on Points of Law and one annexure (Exhibit A). In the Written Address counsel to the Defendants/Applicants contends that what the Applicants intends to do is to prove the fact that the 6th Defendant, Engr. Ade, was never in the employment of the 1st Defendant and that this fact was pleaded in paragraph 2 of their Statement of Defence dated and filed on 14/6/2018 and same was served on the Claimant’s counsel on the 19/6/2018. He said the staff roll which is proposed to be adduced by the amendment in proof thereof is tantamount to bringing evidence in line with the fact already pleaded, as such the amendment can never over reach the Claimant. That the applicant can even amend his processes after the close of his case before judgment. He referred to the case of OJAH VRS OGBONI (1976) 4 SC PG 69 AT 76 – 77. He urged the court to grant the application for the interest of justice.
Having read through all the processes and exhibits filed for and on behalf of the respective parties including the averments contained in both the Supporting and Opposing Affidavit, what the Applicant intends to achieve by filing this application is for the court to grant leave to the Defendants/Applicants to amend their Statement of Defence in this suit in the manner contained in Exhibit A, and also for leave to adduce further evidence as contained in Exhibit B. And in opposing this application, the Claimant/Respondent expresses their fear on the fact that granting this application will aid the Applicants to completely re-write their case which is prejudicial to the Respondents.
In other to effectively and effectually determine this application I formulated a lone issue for determination to wit:
Whether the Defendants/Applicants have made out a case entitling them to the reliefs sought?
Amendment is defined as a small change or improvement that is made to a law or document, the process of changing a law or a document. See U.B.N PLC VRS LAWAL (2012) 6 NWLR (PT. 1295) P. 186 (CA).
Amendment means to improve, to change for the better removing defects or faults and in relation to court proceedings. Amendment is the correction of an error committed in any process, pleading or proceedings at law or in equity and which is one either as of course, or by consent of the parties or upon notice to the court in which the proceedings is pending. It includes “re-writing” the whole document and substituting the new for the old. See U.B.N PLC VRS LAWAL (2012) 6 NWLR (PT. 1295) P. 186 (CA). See also ADEKEYE VRS OLUGBADE (1987) 3 NWLR (PT. 60) 214; N.N.B PLC VRS DENCLAG LTD. (2005) 5 NWLR (PT. 916) 549; OWODUNWO VRS REGISTERED TRUSTEES OF C.C.C (2000) 10 NWLR (PT. 675) 315.
The court is more interested in doing substantial justice. Courts are to approach the question or issue of amendment liberally particularly where such amendment will meet the ends of justice. See U.B.N PLC VRS LAWAL (2012) 6 NWLR (PT. 1295) P. 186 (CA). An application for amendment should not be granted as a matter of course. The court has the discretion to grant permission for amendment, such discretion must be exercised judicially and judiciously. Where the intention for amendment is to clarify the issues in controversy between the parties or to remove any possible injustice in the case and is not to overreach the adverse party, an amendment should be granted. See U.B.N PLC VRS LAWAL (2012) 6 NWLR (PT. 1295) P. 186 (CA). See also OGIDI VRS EGBA (1999) 10 NWLR (PT. 621) 42.
It is of legal significance to note that the wide and extensive powers of amendment vested in the courts are designed to prevent failure of justice due to procedural errors, mistakes and defects and they are exercised to further and serve the aims of justice. The powers of amendment are intended to make more effective the function of the courts to determine the true substantive merits of the case, to have more regard to substance than to form, and thus to free the parties and the court from technicalities or formalities of procedure and to correct errors and defects in the proceedings. However, such extensive powers would, by no means, translate to a carie blanch for effecting amendments which not only seek to overreach the adversary by attempting to alter the nature of the defence; or for unfairly prejudicing the plaintiff, or which, if granted, would entail further evidence to be led on both sides, although one of them had already closed his case. Simply put, an amendment will be refused where, if allowed:
It will entail injustice; or
Surprise or cause embarrassment to the other party; or
Where the applicant is acting mala fide; or
Where the respondent cannot be compensated with costs or otherwise.
In one word, where such an amendment would prejudice the case of the other party to the extent that injustice will occur, the court would refuse the application for the amendment of pleadings. See, C.G.G. (NIG) LTD. VRS IDORENYIN (2015) 13 NWLR (PT. 1475) 149. See also, OKEOWO VRS MIGLIORE (1979) 11 SC 138.
Note that application for amendment can be brought at any stage of the proceedings before judgment so long as it will not entail any injustice on the other party. See UBN PLC VRS LAWAL (2012) 6 NWLR (PT. 1295) P. 186 (CA). See also OKEOWO VRS MILGORE (1979) 11 SC 139; OJOGBORO VRS KUKU (1986) 3 NWLR (PT. 31) 697; MAERSK LINE VRS ADDIDE INVESTMENT LTD. (2002) 11 NWLR (PT. 778) 317; STATE VRS GWONTO (1983) 1 SCNLR 142.
An amendment to a pleading can be sought and made at any stage of a proceeding before judgment as there is no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. The purpose of allowing such privilege is to enable parties conduct their cases properly by placing before the court all relevant facts necessary for the just determination of disputes between them. The caveat however is that any application which seeks to either overreach the other party or alter the nature of the applicant’s case will not be allowed. The idea and reason behind the refusal is of course logical, which is to avoid any form of injustice that might be caused to the other party. For instance an amendment which will necessitate the calling of fresh witnesses where both parties have closed their cases would certainly not serve the course of justice because any further delay would certainly defeat the very purpose thereof. No amendment in any form should also be allowed if the outcome will entail surprise or cause embarrassment to the other party. An amendment that gives an impression of an act in bad faith is not to be entertained and allowed. What is paramount in the mind of a court always is to ensure that justice is served to all parties one party should not be allowed to take an undue advantage of the other. The court in checking against such surreptitious motives will always consider the balance of convenience between the parties. For instance, an amendment which will enhance the justice of a case will hardly be refused by any court, except it occurs to the judge in his opinion that the intention is fraudulent and with a hidden agenda, which will generally work injustice against the opponent. The law in such a situation has therefore given the court wide discretionary powers to exercise in the determination of each case, which should be considered always on its own peculiar circumstance, bearing in mind that same sets of cases with similar facts may not necessarily yield the same outcome. See C. G.G. (NIG.) LTD. VRS IDORENYIN (2015) 13 NWLR (PT. 1475) 149. See also ADETUTU VRS ADEROHUNMU (1984) 1 SCNLR 515.
Pleadings may be amended at any stage of the proceedings before judgment is delivered, upon good and proper reasons shown. For instance, an amendment may be granted in order to bring the real issues in controversy between the parties before the court or in order to bring the pleadings in line with evidence already led at the trial. The power of the court to permit an amendment, which is discretionary, must be exercised judicially and judiciously having regard to all the circumstances of the case. An amendment will therefore not be granted where it will entail injustice to the adverse party; where the application is made mala fide or where; by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. Amendments are more easily granted where the grant does not necessitate the calling of additional evidence or changing the character of the case on the ground that no prejudice would result from the amendment. See, C.G.G. (NIG.) LTD. VRS IDORENYIN (2015) 13 NWLR (PT. 1475) 149. See also, OJAH VRS OGBONI (1976) 1 NMLR 95; IMONIKHE VRS A.G BENDEL STATE (1992) 6 NWLR (PT. 248) 396; OGUNTIMEHIN VRS GUBERE (1964) 1 AU NLR 176; LAGURO VRS TOKU (1992) 2 NWLR (PT. 223) 278.
Therefore, parties are at liberty to amend their pleadings whenever it is appropriate to do so in order to bring into focus the real issues in controversy for determination by the court. The rationale behind allowing for amendment is that human memory is short and may at times remember issues after pleadings had been filed and exchanged. There is always the need to make amendments to bring in the issues now remembered after pleadings had been filed. Sometimes mistakes are made and there is need to correct same. See, C.G.G. (NIG.) LTD VRS IDORENYIN (2015) 13 NWLR (PT. 1475) 149.
Where a proposed amendment raises issues in controversy which are already in evidence the court must allow it. See DURBAR HOTEL VRS KASABA UNITED LTD. (2017) 2 NWLR (PT. 1549) CA; AFRICAN DEVELOPMENT INSURANCE CO. LTD VRS ZUMAX NIG. LTD (2008) LPELR – 3639.
In considering whether or not to grant an amendment to pleadings, the court must always be guided by the materiality of the amendment sought, the rule of audi alteram partem and the genuiness of the amendment. See DURBAR HOTEL LTD. VRS KASABA UNITED LTD. (2017) 2 NWLR (PT. 1549) CA.
Amendment of pleadings 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. See DURBAR HOTEL LTD. VRS KASABA UNITED LTD. (2017) 2 NWLR (PT. 1549) CA. See also SHELL PETROLEUM DEV. CO. LTD. AMBAH (1999) 3 NWLR (PT. 593) 1.
The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on a litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be addressed by that panacea which heals every sore in litigation namely costs. See OLOGUN VRS FATAYO (2013) 1 NWLR (PT. 1335) P. 303. See also AKANINWO VRS NSIRIM (2008) 9 NWLR (PT. 1093) 439.
To be able to determine whether an amendment is for the purpose of determining the real question in controversy between the parties in a case, it is the issues joined between the parties in their pleadings and evidence that one must look at. See N.S.E VRS KATCHY (2017) 7 NWLR (PT, 1564) CA.
The power to grant or refuse an amendment is discretionary. As with the exercise of all discretionary powers, the discretion must be exercised judiciously and judicially taking into account competing rights of the parties to justice. See OLOGUN VRS FATAYO (2013) 1 NWLR (Pt. 1335) P. 303.
Having said all these, Order 26 Rule 1 (1) of the N.I.C.N (Civil Procedure) Rules 2017 empowered this court to allow a party to amend processes for the purpose of determining the real question or issues between the parties, secure substantial justice and settle the controversies between parties. An amendment can only be refused if where it would present a completely different case, or cause injustice to the other party or when the application is brought mala fide or over-reaching the other party or an abuse of court process. And by Order 26 Rule 2 of the rules of this court a party may at any time but not more than twice with leave of court alter, amend or modify the party’s originating and/or other processes.
From the records of this court while it’s true that one C.B Osila Esq appeared for the Defendants on the 14th April, 2016, its also of importance to note that the Defendants had not filed any Memorandum of Appearance as at that time. And this suit commenced de novo on the 19th April, 2018.
Furthermore, looking at paragraph 2 of the Statement of Defence filed by the Defendants where the Defendants/Applicants denied that no staff called Engr. Ade (6th Defendant) is in the employment of the 1st Defendant. Therefore, for the applicant to call or adduce more evidence with regards to this denied fact is not over-reaching. And I so hold.
In view of the foregoing facts enumerated ab-initio, its my ardent belief that the application is not brought mala fide and does not in any way intends to change the nature or character of this trial but rather to settle the real issues or questions between parties.
Moreover, the Claimant/Respondent has the right to make consequential amendment does the need arise in line with the provisions of Order 26 Rule 2 of the rules of this court. I resolved the lone issue for determination in favour of the Defendants/Applicants. The application is hereby granted. And I grant all the prayers as contained on the face of the Motion Paper. I award N20, 000.00 as cost against the Defendants/Applicants.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI