IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HJONOURABLE MR. JUSTICE SANUSI KADO
18TH DAY OF MARCH 2020 SUIT NO. NICN/ABJ/69/2018
Mr. Ayo Olowoofoyeku ……………………………………. Claimant/Applicant
NICON insurance Plc ………………………………………….. defendant/Respondent.
1. This is a motion on notice dated 5th day of November 2019 and filed on 20th day of November 2019. The motion was brought pursuant to Order 30 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) rules 2017 and section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended and under the inherent Jurisdiction of the Court. The motion on notice is praying for the following reliefs:-
a. An order setting aside the order of this court that has adjourned this suit for defence.
b. An order granting leave to the claimant/applicant to reopen his case.
c. An order granting leave to the claimant who testified as PW1 to be recalled for the purpose of giving evidence in support of his reply to the defendant’s statement of defence.
d. And fir such further order(s) that this Honourable Court may deem fit to make in the circumstances.
2. The grounds for this application are as contained in the motion papers.
3. The application is supported by a 6 paragraphs affidavit in support sworn to by one Mr. Emmanuel Samson a Litigation Secretary in the law firm of Akin Adewale & Co. counsel for the applicant. In the affidavit in support it was stated that the claimant opened his case on 1/7/2019 and closed the case on 21/10/2019. On the same 21/10/2019, the defendant with the leave of court filed its statement of defence. It was also stated that the claimant under the rules of court has 14 days to file reply to the statement of defence. It was averred that the claimant after close of his case discovered that it is very important and necessary to file reply to the statement of defence. Consequently, on 4/11/2019, the claimant filed reply to the statement of defence, which was done within the 14 days’ time allowed by the rules of court. That in view of filing of reply it has become imperative to recall the claimant who had testified to give evidence in support of his reply to the defendant’s statement of defence. It is in the interest of justice to recall the claimant to give evidence in support of his reply to the statement of defence.
4. In the written address filed by the counsel for the claimant a long with the motion on notice a single issue was formulated for determination, to wit:-
‘’Whether or not this Honourable Court has the discretionary power to grant this application.
5. In arguing the sole issue for resolution counsel contended that the claimant/applicant has supplied necessary and sufficient particulars for this application to be granted in his favour. Counsel went on to argue that it is the discretion of the court for a witness to be recalled and also for the claimant/applicant to reopen his case and for the purpose of giving evidence and this was the position of the supreme court in Williams V Hope Rising Voluntary Society (1982) 2 Sc 145 – 159.
6. Counsel further argued that this court is empowered to grant or refuse an application before it but in the exercise of this discretionary power the court is guided by considerations of doing justice between the parties and to ensure ultimately that the dispute between the parties was decided on merit. On this contention counsel relied on the case of Khawam V elias (1960) FSC 224, (1960) SCNCR 516.
7. Counsel contended that the court has the discretionary power to grant an application for leave to recall a witness and also to reopen the case of the claimant so as to give more evidence in the case. To support this argument counsel placed reliance on the case of Tiwaaani Limited V CTMB Limited (1997) 8 NWLR (Pt.515) 140, where it was held the grant or refusal of an application to recall witness is at the discretion of the court acting judicially and judiciously.
8. In concluding his submission counsel prays this Honourable court to exercise its discretion judicially and judiciously in favour of the claimant/applicant and grant this application in the interest of justice.
9. It is to be noted that the defendant/respondent despite being served with the motion on notice failed, neglected or refused to file counter-affidavit to counter or contradict the facts deposed therein. However, the failure of the defendant/respondent to file counter-affidavit does not translate to automatic grant of the application. What this means is that the application will be considered based on the argument canvassed by the claimant/applicant.
10. I have considered the motion on notice filed by the claimant/applicant praying for setting aside order of this court adjourning this suit for defence, leave to the claimant/applicant to re-open his case and leave for the claimant to testify for purpose of giving evidence in support of his reply to the defendant’s statement of defence and the written and oral submission of counsel for the claimant/applicant.
11. The question to be resolved is whether the claimant/applicant is entitled to the grant of the reliefs sought in the motion on notice.
12. The claimant/applicant in arguing in favour of grant of the application has contended that this court has the requisite discretionary power to hear and determine this suit.
13. There is no doubt that this application calls for exercise of discretionary power of this court and like every other discretionary power it has to be exercised judicially and judiciously based on establish principles governing exercise of such discretion. Where an applicant seeks to be allowed to do an act which he omitted to do when he ought to have done it during trial he has a duty if he want the court to exercise its discretion in his favour to place before the court sufficient materials, good enough facts giving reasons that are adequate and reasonable to explain his omission and/or failure to do the act at the appropriate time during the said trial. See NEBO V. FCDA & ANOR (1998) JELR 45680 (CA), Okwonkwo & Anor V Nwaoshai (2016) the rationale behind requiring an applicant to supply enough materials is to avoid opening of flood gate of endless trial, thereby making nonsense of litigation in our advertorial system of justice. In the case of ONWUKA VS ONWUKA (2001) 7 NWLR (PT.713) 695 AT 713, it was stated that where an application is made for recalling of witness, to grant or refuse the recall is discretionary and must be done judicially and judiciously.
14. Under our rules the court is empowered to grant application for setting aside in appropriate cases. It is as well empowered to grant re-opening of case or recalling of witnesses. The provision of Order 38 Rule 31 of the National Industrial Court (Civil Procedure) Rules 2017, provides:-
‘’Upon being satisfied with the grounds on which the application is made, and where the Court deems it fit in the interest of justice and fair trial to do so, the court shall grant leave to the party to reopen the case for the purposes of clarifying the point of law and/or presenting the additional evidence as contained in the application to the court.
Provided the respondent party shall have the right to reply within seven (7) days as the case may be.’’
15. It is clear that the above provisions of the rules of this court has adequately cloth this court. With power to grant leave to reopen case and recall witness to testify. However, the power is required to be exercised cautiously. The applicant must give sufficient reasons for the court to exercise its discretion. From the affidavit evidence before the court the claimant has testified and closed his case on 21/10/2019. Earlier on that date the defendant has sought and obtained leave to file statement of defence out of time which was granted due to lack of objection from the claimant. Thereafter, on 4/11/2019, the claimant filed reply to the statement of defence. This was after he had closed his case on 21/10/2019. Thus, why this application for setting aside, leave to reopen and recall claimant to testify was made.
16. I have thoroughly examined the affidavit in support of the motion on notice there are no materials supplied by the claimant/applicant showing why the claimant/applicant is seeking for setting aside order adjourning this suit for defence. In an application for setting aside, the applicant is duty bound to exhibit the order which the applicant want the court to set aside. The claimant/applicant in this suit has not exhibitted the order he want the court to set aside. In the circumstance the prayer seeking for setting aside has no basis and is hereby refused.
17. Furthermore, it must be noted that it is trite law an order of court of competent jurisdiction once given cannot be reviewed or set aside by the same court unless such an order was made without jurisdiction or was made when the court was misled into making such order or it was procured by fraud or it was given in the absence of the party. All that transpired on 21/10/2019, when the order adjourning this suit for defence, was in the presence of counsel for the parties. It is on that day that counsel for the claimant closed the case of the claimant after the 3rd claimant’s witness was cross-examined by the defence counsel. It is also interesting to note that the defendant filed statement of defence on 21/10/2019 with the counsel for the claimant not opposing the application. Upon grant of the application for filing of statement of defence out of time, counsel for the claimant immediately proceeded with the trial without asking for adjournment to enable him file his reply. The claimant by proceeding with his case after filing of defence out of time clearly shows that the claimant has no intention of filing any reply. But, surprisingly counsel on 4/11/19 did a u turn and filed reply to the statement of defence. It is also apparent that by closing the case of the claimant on 21/10/19, it means the claimant had no more evidence to adduced before the court.
18. In discretionary matters an indulgence can be granted when credible excuse is given. In Willoughby V International Merchant Bank (Nigeria) (1987), the Supreme Court stated that it is obvious that a party applying to recall a witness must supply the trial judge with sufficient facts relating to why he wants the witness recalled and what he intends to put to the witness. It is on these facts that the trial judge will decide whether or not the justice of the case obliges him to exercise his discretion one way or the other.
19. It is important to note that the exercise of power to recall a witness is not at large. It is used to assist the Court in arriving at the truth of the matters. The materials to be supplied must relate to why he want witness recalled and what he intends to put to then witness and it is on these facts that the trial Judge will decide whether or not the justice of the case obliges him to exercise his discretion.
20. It can be gathered from the affidavit evidence that the reason why the claimant want to reopen and recall witness is the filing of reply to statement of defence4. I do not think that the reason is strong enough to warrant grant of this kind of application. This is because reply to statement of defence is not filed as a matter of course. There must be new facts raised by the defence. In the case at hand I have studied the pleadings of the parties there are no new facts raised in the statement of defence that will require filing of reply. It is only where statement of defence raised new issues of facts not arising from the statement of claim, the claimant has a duty to deal with the new issues of fact in his reply. The law is well settled that a reply is not necessary, if its purpose is to deny the allegations in the statement of defence. See Obot v CBN 1993 9 SCNJ 268; Spasco V Alraine (1995) 9 SCNJ 288, Ishola V SB Bank (1997) 2 SCNJ 1, Philipo V Eba Odan Commercial & Industrial Company Limited (2012) LPELR-9718(SC).
21. From the facts as disclosed by the affidavit in support of this application as well as what transpired in court on 21/10/2019, I am convinced that the counsel for the claimant did not strategically do what he was supposed to do when the application for extension of time was granted to the defendant to file statement of defence out of time. This inadvertence of counsel is what brought about this application, though, it is the law that sins of counsel should not be visited on the litigant. See Adekeye & Ors v Akin-Olubade (1987) 3 NWLR (Pt.60) 214; Ndika v Chiejina (2003) 1 NWLR (Pt.802) 451, 48; Alhamdu v Salawu (1974) 9 NSCC 538, 542; Bowaje v Adediwura (1976) 6 SC 143, 147; Ibodo v Enarofia (1980) 5-7 SC 42 and Akanbi v Alao (1987) 3 NWLR (Pt.108) 143.
22. In any event, this court have a duty to point out that there is authority for the view that the mistake of counsel does not avail litigant in all cases. See Oyewole v Lasisi (2000) FWLR (Pt 10) 1606. Indeed, mistake of counsel must be distinguished from the deliberate action or strategy of counsel. This is because deliberate action or strategy cannot be excused or categorized as mistake of counsel. See Ningi Services Ltd v Imaoye (2003) FWLR Pt 143) 341. Thus, before the rule that the mistake of counsel should not be visited on the litigants can be invoked, the court must be satisfied that it was a genuine mistake. See Akanbi v Alao (supra). The rule does not apply where counsel is tardy. See Kolawole v Pezzani Alberto  All NLR 137, 151;  1 NWLR (Pt.98) 382. Above all, before an error of counsel can be called in aid of a litigant, an affidavit is required from counsel himself admitting the fault. See JIC Ltd v R. L. Import and Export  7 SCNJ 98, 108.
23. In Akanbi v Alao (supra), the apex court dealt with the question of the usual concern about the plight of the "helpless litigant whose counsel had made an error of judgment in his legal submissions, and consequently lost the case for his clients." Craig JSC speaking for the court, re-iterated the view of the court in such circumstances: a view which Eso JSC, stated in this eloquent manner in Mosheshe General Merchant Ltd. v. Nigerian Steel Products Ltd:
‘’A Counsel who has been briefed and has accepted the brief and also has Indicated to the court that he has instructions to conduct a case has full 'control' of the case. He is to conduct the case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to Judgment. Sometimes, he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the Court.
The only thing open to the client is to withdraw instructions from the counsel or if the counsel was negligent and sue in tort for professional negligence. Such are the powers but such are also the risks.’’
24. In view of the foregoing I am not convince that the claimant who had ample opportunity to have asked for adjournment at appropriate time so as to enable him file his reply can now seek for indulgence of the court, after throwing caution to the wind by proceeding with his case in the face of the defence that was filed by the defendant instead of applying for an adjournment.
25. In the circumstance the application to reopen a case and recall witness failed for lacking in merit and same is hereby dismissed.
26. Ruling entered accordingly.
Akin Adewale, Esq; for the claimant.