IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
30Th DAY OF APRIL 2020 SUIT NO. NICN/ABJ/346/2013
GNR Bashr Bello ………………………………………………………………… Claimant/Applicant
1. Nigeria Army
2. Chief of Army Staff Defendants/Respondents.
3. General Officer Commanding 1 Division
4. Nigeria Army Kaduna
1. This ruling was supposed to have been delivered on 1/4/2020, but, the court did not sit as scheduled due to lockdown of the Federal Capital Territory, Abuja due to Coronavirus outbreak, thus why the ruling is being delivered today, the 30th day of April 2020.
2. This deal with motion on notice dated 24th day of December 2018 and filed on the same day. The application was brought pursuant to Order 26 Rules 1, 2 and 4 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the inherent jurisdiction of the court. The application is praying for an order of court granting the claimant/applicant leave to amend his originating processes (Pleadings, witness statement on oath etc) and for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
3. The application is supported by a 7 paragraphs affidavit sworn to by Samuel Akporido, a legal practitioner in the law firm of Tony Itedjere& Co. counsel representing the claimant. A written address was also filed along with the motion on notice.
4. Gabriel Ogenyi, Esq; counsel that appeared for the claimant/applicant in oral adumbration relied on the depositions contained in the affidavit in support and adopts the written address as his argument. Counsel urged the court to grant the application, as the application is meant to bring before the court vital facts in support of the claimant’s case. Counsel contended grant of the application will not prejudice the claimant as the matter is still at early stage. It is also submitted that the amendment will enable the court determine real issues in controversy between the parties.
5. I have carefully considered the motion on notice for amendment and the entire processes so far filed in this suit.
6. The claimant’s application is praying for order granting leave for the claimant to amend his originating processes as shown in exhibits BB1.
7. It is true that the power of the court extends to grant of an amendment even if the amendment would add to the existing cause of action or substitute therefore a new cause of action provided that the additional or new cause of action arises out of the same or substantially the same facts as are contained in the pleadings. The key point to be considered is the interest of justice and a situation where the award of costs would not meet that interest of justice. See Ipadeola v. Oshowole (1987) 3 NWLR (Pt. 59) 18 at 33.
8. I have examined the affidavit in support and there is no counter-affidavit filed by the defendants to counter or controvert the facts deposed to in the affidavit in support. In the absence of counter-affidavit I take it that the defendants are not opposing this application and that they have admitted the facts deposed to in the affidavit in support as the truth and the defendants/respondents are deemed to have admitted the facts deposed to in the affidavit in support. See Alfotrin v. Attorney General of the Federation &Anor. (1996) 12 SCNJ 236 at 262; per Iguh, JSC; Omoregbe v. Lawani (1980) 3-4 SC 108 at 117; N.M.S. Ltd. v. Afolabi (1978) 2 SC 79 at 87; Boshali V. A.C.E. Ltd. (1961) 1 ALL NLR 917 and Maersk Line v. Addide Ltd. (supra) at 461. From the decisions in the above cited cases, where the averments in the Affidavit are not controverted they are deemed admitted by the opposing party who failed and neglected to file counter-affidavit
9. In view of the foregoing, I find the application to be meritorious and same is hereby granted.
10. The claimant/applicant is hereby granted seven days from today to file the amended processes and serve same on the defendants.
11. Ruling entered accordingly.
No representation for the Defendants.