IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI
DATE: 23RD MARCH, 2020 SUIT NO: NICN/UY/08/2017
ENEFIOK J. ETUK……………………..CLAIMANT/RESPONDENT
AKWA IBOM WATER COMPANY LIMITED … DEFENDANT/APPLICANT
MADUABUHI NWINYA FOR THE CLAIMANT/RESPONDENT
IFEANYI IDIKA DEFENDANTS/APPLICANT
The Defendant/Applicant herein filed a motion on notice the 7th October, 2019 pursuant to Order 17 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017praying for an orderstriking out the process titled: “Claimant’s Defence to the Defendant’s Counter Claim”filed on the 17th June, 2019 being an incompetent process.
The Grounds for the Application are as follows:
1. The Memorandum of Appearance, Statement of Defence and Counterclaim of the Defendant was served on the Claimant since May, 2017 and the said Defence to Counterclaim was filed on 17th June, 2019 outside the statutory 14 days required under the rules and more than a year after service of same, without leave first sought and obtained.
2. The said Defence to Counterclaim is incompetent and liable to be struck out.
The application is supported by a 6 paragraphs affidavit deposed to by Ifeanyi Idika of counsel and a written address. On the other hand, the Claimant/Respondent filed a counter-affidavit of 6 paragraphs deposed to by the Claimant and a written address on 28th October, 2019. The Defendant/Applicantalso filed a Reply on Points of Law on the 15thJanuary, 2020thereby setting the stage for the adoption of arguments for and against this application on 4thMarch, 2020.
SUBMISSION OF DEFENDANT/APPLICANT
The Defendant/Applicant submitted one issue for determination: Whether the Claimant’s Defence to the Defendant’s Counter Claim filed by the Claimant on 17th June, 2019 out of time without leave of court is not liable to be struck out.
TheDefendant/Applicant submitted that in the instant case, the Claimant’s defence to counter claim was filed outside the statutory 14 days under the rules and more than one year out of time and is therefore incompetent because no leave was sought and none was granted. It is the further submission of the Defendant/Applicant that on the authority of Sani vs. Agnaga (2010) 2 NWLR (PART 1178) P. 371 at p. 378, it is well settled law that:
“where a process is filed outside the statutory period provided in the rules of court, and there is no application for leave to file same out of time and none was granted, the consequence is such that the process is incompetent and therefore liable to be struck out.”
To the Defendant/Applicant, a party who files a process out of time and without leave of court knows what to do and need not be told of the consequences of failure to seek leave where leave is required to file a process. On the basis of the foregoing the Defendant/Applicant urged the court to strike out the process.
SUBMISSION OF CLAIMANT/RESPONDENT
In vehemently opposing this applicationand relying on paragraphs 5,6(a) (b) (c) (d) (e) (f) (g) of the Claimant/Respondent’s Counter-Affidavit, the Claimant/Respondent submitted that it was the Consequential Amended Counter Claim of the Defendant/ Respondent of 6th June, 2019 that he reacted to and not the one of 15th May, 2019 which is no more before this court. In support, the Claimant/Respondent cited the case of Ibrahim vs. Okutepa (2015) all FWLR (Pt. 785) R6, where the court stated thus:
“Once pleadings are duly amended by order of court, what stood before the amendment is no longer material before the court. The law had not laid down any such principle that an original pleading which has been duly amended automatically ceases to exist for all proceedings. It does certainly exist and is before the court. It is hoverer totally immaterial in the determination of issues to be tried in the proceedings. It thus cannot be considered as the basis for its judgment in the suit. It can only occupy the idle position of a process in the court’s file, which a court has the imprimatur to look at but will not be used in determining any live issue”.
According to the Claimant/Respondent, what is before this court for determination is a live issue of whether the Claimant/Respondent’sDefence to the Consequential Amended Counter Claim of the defendant is valid. Asserting that the Counter Claim of the Defendant filed on 15th May, 2017 is no more before this court as to form the basis of determining the live issue before this court, the Claimant/Respondent strongly submitted that there was no need for leave of this court to file the Defence to the Counter Claim of the Defendant having filed same within the time as prescribed by the rules of this court.
Finally, the Claimant/Respondent prayed the court to dismiss this application with punitive cost for lacking in merit in its entirety.
DEFENDANT/APPLICANT REPLY ON POINTS OF LAW
The Defendant/Applicant filed a Reply on Points of Law of two (2) pages which will be considered in due course.
DECISION OF THE COURT
At first I was inclined to give this application a bench ruling but having observed how counsel carried on as if the outcome of the case itself depended on it, I have to have a rethink. Be that as it may, it did not change my initial thinking on the application one bit.
Before I consider the application proper, I would like to say a word on the Applicant’s Reply on Points of Law filed on the15th January, 2020. Apart from a feeble attempt to distinguish the case ofIbrahim vs. Okutepa (2015) all FWLR (Pt. 785) R6, which was not well founded, there was no semblance of any issue of law raised in the said reply. All the Defendant/Applicant did therein was to reargue and sometimes seek to improve on the arguments proffered in the Written Address. This is not the purport or function of a reply. A reply on point of law is not supposed to be a repair kit to correct an error or lacuna in the initial argument. See the cases of Ogolo v. Fubura (2003) 11 NWLR (Pt. 831) 238and Basinco Motora Limited v. Woermann Line & Anor (2009) 13 NWLR (Pt. 1157) 149. Since the reply here is a mere repetition of the arguments in the written address of the Defendant/Applicant and therefore clear negation of above principles, I have no option but to discountenance the reply in this ruling. I so hold.
The question for determination here is a simple one. Is the Claimant’s Defence to the Counter Claim filed on 17th June, 2019 a response to Statement of Defence and Counterclaim filed since May, 2017 or the Amended Statement of Defence and Counter-Claim filed on 6th June, 2019. This is the bone of contention and the crux of the matter. To the Defendant/Applicant, it is the former which rendered the process incompetent for being out of time. To the Claimant/Respondent it is the latter in which case the process is within time and no leave is required.
Now, what is the position of the law on the subject? The position of the law is that an order of amendment takes effect not from the date when the amendment is made or granted but from the date of the commencement of the action. In other words, once ordered, what stand before amendment is no longer material before the court and no longer defines the issues to be tried. See the Supreme Court cases of Vulcan Gases v. Gesellschaft (2001) 5 S.C.N.J. 76 and Jatau v. Ahmed (2003) 1 S.C.N.J. 391.I am therefore in agreement with the position of the Claimant/Respondent as canvassed in the case of Ibrahim vs. Okutepa (2015) all FWLR (Pt. 785) R6. For a more complete answer, I cannot do better than to refer to the dictum of O. O. Adekeye, J.S.C. in Anambra State v. Ekwenem (2009) 7 S.C.N.J. 20-21:
“It is trite that in the pleadings of the plaintiff before commencement of trial, a further amended statement of claim supersedes an Amended Statement of claim. This poses the question whether pleading later amended ceases to exist for the purpose of the proceedings. The Supreme Court aptly considered this intricate question in the case of Agbaa Homovo v. Eduvegbe (1999) 3 N.W.L.R. (pt.593) 170 at 186 – 187 paragraphs H.C. where it concluded that:
“Although once pleadings are duly amended by an order of court, what stood before amendment is no longer material before the court and no longer defines the issues to be tried before the court. This however, is as far as that proposition of the law goes. It does not and has not laid down any such principle that an original pleading which has been duly amended by an order of court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law established is that such original pleading which has been duly amended is no longer material before the court in the sense that it no longer determines or defines the live issues to be tried by the court. It is however totally immaterial in the determination of issues to be tried in the proceedings. Thus it cannot be considered as the basis of one’s case in action. Nor may a court of law rely on any such original pleading which has been duly amended as the basis for the judgment in the suit. The issues to be tried will depend on the state of the final or amended pleadings. Salami v. Oke (1987) 5 N.W.L.R. (pt. 63) 1, Agboisi v. Ebikorefe (1997) 4 N.W.L.R. (pt. 502) 630.”
There is yet another angle to this application. This application is predicated on Order 17, Rule 1, NICN Rules, 2017 which brings into focus the nature and purport of rules of court in the dispensation of justice. Although rules of court are meant to be obeyed, they are supposed to support the administration of justiceand not defeat the ends of justice.They are not sine qua non in the just determination of a case and therefore not immutable or absolute. See the case of Duke v. Akpabuyo (2005) 12 S.C.N.J. 285 per I. G. Pats-Acholonu, J.S.C. Having said that and in view of the inherent discretion vested in the court to waive procedural compliance in the interest of justice, I am convinced that the interest of justice will be better served if the Respondent’s Defence to the Defendant’s Counter-Claim is considered in determining the merit of this suit. This is assuming and not conceding that the process in question is filed out of time. I am fortified in this regard by the wisdom of O. O. Adekeye, J.S.C. inDingyadi v. INEC (2010) 42 (pt. 2) N.S.C.Q.R. 839:
“I must remark that rules of court are made for attaining justice with ease, certainty and dispatch. They are made for the purpose of obtaining justice by parties in the citadel of justice. They must not be used in the instance of this case as a clog in the wheel of obtaining such justice. Solanke v. Somefun (1974) ALL NLR pt. 1 pg. 141. The courts have power to waive compliance with the rules in exceptional circumstance when it considers that the interest of justice is of paramount importance. Nowadays, this court has moved away from technical justice to doing substantial justice. I hold that it is appropriate to waive compliance with extension of time Order 2 Rule 31 (1) in the circumstance of this case.”
From all I am saying, this applicant has no merit and is hereby dismissed with no order as to cost.
Ruling entered accordingly.
HON. JUSTICE M. A. NAMTARI