IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE
Dated: 3rd October 2017
SUIT NO: NICN/OW/102/2014
Mr. Ademola Olubanwo - Claimant/Respondent
BOC Gases Nigeria Plc - Defendant/Applicant
B. K. D. Alalibor for the Claimant/Respondent
F. A. T. Adeyemi for the Defendant/Applicant
On 15th May 2017, the Defendant filed a motion on notice, which was brought under Order 26 Rules 1 and 3 of the Rules of this Court and under the inherent jurisdiction of this Court, praying for an order of the court to amend the Statement of Defence and Counter Claim of the Defendant. The motion was supported with a 13 paragraphs affidavit deposed by John Uche, a litigation clerk in the law firm of the Defendant’s counsel. The Defendant’s counsel also filed a written address to the motion and a proposed amended Statement of Defence and Counter Claim was annexed to the motion without marking it as an exhibit. The Claimant opposed the application and filed a Counter Affidavit of 14 paragraphs and a written address to that effect. The Counter Affidavit was deposed to by the Claimant. I do not see the need to reduce the contents of these processes in this ruling but I have examined the motion, the averments in the affidavits of the parties and the submissions of counsels in the written addresses.
In paragraph 7 of the affidavit in support of the motion, it was deposed that “the proposed amended statement of defence and counterclaim is hereby attached and marked Exhibit BOC1”. However, the proposed amended Statement of Defence and Counter Claim attached to the motion was not so marked as an Exhibit. Order 26 Rule 4 of the Rules of this Court 2017 provides that in an application for leave to amend a process, the application shall be supported by an affidavit with the proposed amendment marked and attached as an Exhibit. Having failed to comply with the rules, the Defendant’s counsel urged the court, in his oral submission on 7th July 2017, to treat the non compliance as an irregularity. I am inclined to overlook the failure of the Defendant to mark the proposed amended Statement of Defence and Counterclaim as an Exhibit. The fact that the affidavit has referred to the proposed amendment as exhibit presupposes that failure to mark the process was an oversight.
It is trite that Courts have the inherent powers to allow amendments to pleadings of the parties at any stage of the proceedings. In order words, the courts have the discretion in the matter of amendment to pleadings. See IGWE vs. KALU (2002) FWLR (Pt. 97) 677 at 712. Order 26 Rule 2 of the rules of this court also provides that 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. This provision permits a party to amend his processes at any stage of the case with leave of the court. Rule 1 (1) of Order 26 provides that an amendment may be allowed where its purpose is to determine the real question or issue between parties and would secure substantial justice or settle the controversy between parties and related issues. See also Rule 3 of the same order which states that the Court may at any time allow a party to amend any defect or error in any process which are necessary for the purpose of determining the real questions or issues in controversy raised by or arising from the proceedings. The Defendant has deposed in the affidavit that the amendment is to allow the Defendant plead documents, enable the Defendant properly state the position of the parties and necessary for the just determination of the case. I have also seen the averments in the proposed amendment. In my view, the amendments sought to be made is for the purpose of pleading the totality of the Defendant’s case and it will enable the court properly settle the issues in controversy between the parties. The duty of this court is to do justice to the parties at all times. The purpose of allowing amendment is to enable a party bring the totality of his case before the court. When the court sees that amendment will enable court justly determine a case, the amendment will be allowed. This is the spirit behind Rules 1 (1) and 3 of Order 26. I am therefore inclined to grant the amendment sought by the Defendant.
The Claimant contended that the intention of the Defendant is to delay the case, overreach the Claimant and introduce new facts to the case to which to Claimant must file a fresh reply and re-open his case. These issues raised by the Claimant are not such that the Claimant cannot be compensated in cost or cured by allowing the Claimant to file a reply to the amended Statement of Defence or even re-open his case to call additional evidence if necessary and upon making the appropriate application. I do not see the contentions of the Claimant as weighty enough to deny the amendment sought by the Defendant.
It is observed that the prayer in the motion is for amendment of the Statement of Defence and Counterclaim only and it is only the proposed amendment that was exhibited to the motion. Order 26 Rule 5 provides that where any Originating Process and/or a pleading is to be amended, a list of any additional witness(es) proposed or intended to be called together with such witness’s written statement on oath (and or a further written statement on oath of an existing witness) as well as a copy of any additional document to be relied upon, shall be filed with the application. Although clean copies of the witnesses’ depositions and copies of documents were filed separately by the Defendant, there is no amended Statement of Defence and Counterclaim yet before the court. These processes can be filed only when a clean copy of the amended Statement of Defence and Counterclaim is filed after leave has been granted.
In sum, leave is granted to the Defendant to amend its Statement of Defence and Counterclaim. The amended Statement of Defence must be filed within 7 days from today together with the list and depositions of witnesses and copies of the documents pleaded. The cost of
N10,000.00 is however awarded in favour of the Claimant.
Ruling is entered accordingly.
Hon. Justice O. Y. Anuwe