IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
5th JULY, 2021 SUIT NO: NICN/KN/30/2015
NURAINI ABDULFATAI …… CLAIMANT/ APPLICANT
UNITED BANK FOR AFRICA …… DEFENDANT/ RESPONDENT
REPRESENTATION: Parties absent.
Kayode Amodu for the Claimants. Defendants unrepresented.
The Claimant commenced this action by the writ filed on the 27th of November 2015 in which he sought the following claims:
1. AN ORDER directing the defendant to pay to the claimant, leave encashment for 282 leave days which the Claimant was entitled to and which he did not utilize while in the employment of the defendant.
2. Cost of the action.
2. However by Leave and Order of the Court pursuant to the Motion filed by the Claimant /Applicant on the 23rd May 2016, the Court on the 25th of May, 2016 made the following orders:
1. An Order granting Leave to amend Claimant’s statement of facts.
2. Leave to file fresh Witness statement on oath and to substitute Claimant’s earlier witness statement on oath with a new one .
3. A deeming order on the separately filed and served Complaint, the amended statement of fact and fresh witness statement on oath of the Claimant as having been properly filed and served.
4. And such further orders.
3. It is worth noting that this matter came up first in January 2016 before the late Mani J, and commenced de novo before me in April 2018. And at the close of proceedings matter was adjourned to the 15th of January 2020 for adoption of final written addresses. Thereafter the Claimant, through Counsel, by the Motion filed on the same 15th January 2020 pursuant to Order 17 R.1 of the National Industrial Court Civil Procedure Rules 2017 prayed the court for the following orders:
1. An Order granting leave to the Claimant/ Applicant to amend his statement of facts in line with the evidence already led in the suit and in the manner set out in the proposed amended statement of facts annexed to the application as Exhibit OV1.
2. An Order extending time for the Claimant/ Applicant to file his final written address.
3. Such further or other orders as the Honourable Court may deem fit to make in the circumstances.
4. The motion was accompanied with a supporting affidavit and a written address. The Defendant by way of response filed a counter affidavit and a written address. In the counter affidavit it is averred that after the adjournment for final written addresses and upon being served with the Defendant’s final written address a junior counsel was instructed read through it and prepare the Claimant’s response for filing.
5. The Deponent averred further that while senior counsel in the matter was carrying out a review of the case that he discovered that counsel in advertently did not prepare the process. And it was while preparing the process that he discovered that there was need to amend the Claimant’s statement of facts to bring it in line with evidence already led so as to assist the Court in effectively determining the real issues in controversy between the parties.
6. It was averred further that in his testimony before the court, the Claimant testified that he was denied payment for 282 un utilized leave days by the defendant. That there was need to amend the defendant’s statement of facts to enable him seek reliefs along that line.
7. That Counsel then prepared reliefs along that line in the proposed amended statement of facts annexed as Exhibit OV1. And that he is also out of time to file the Claimant’s final written address and time needs to be extended for him to file the address in the interest of justice.
8. In the counter affidavit, the Defendant through the deponent averred that the foregoing contents of the supporting affidavit is not true. And in further response to the averment about leave to file the Claimant’s written address out of time, the defendant averred that the Claimant as applicant has not attached any written address to the application as evidence that the said written address has been prepared.
9. It was also averred that that the Claimant’s amended complaint dated the 23rd of May,2016 which incorporates the applicant’s statement of facts sought to be amended is unsigned.
10. In further response the Claimant/ Applicant filed a further and better affidavit wherein it was averred that it was never stated in the affidavit in support of the motion that a written address had been prepared but the address was in the process of being prepared when it was discovered that there was need to amend the Claimant’s statement of facts. That he signed all the processes accompanying the accompanying amended complaint of 23rd May, 2016. That the Complaint of 27th November 2015 by which the suit was instituted was signed.
12. It was averred further that Claimant had applied earlier on 25th May 2016 to amend the Complaint of 27/11/15 because the complaint was erroneously headed “ WRIT OF SUMMONS’’. That despite the erroneous heading every other part of the Complaint read and clearly showed it was a complaint. And that the Defendant did not at any stage of the proceedings complain about the erroneous heading and neither did it oppose the application to amend it on 25th May, 2016.
13. In the written address in support of the motion a sole issue was formulated for determination. That is : “whether the Claimant should be allowed to amend his statement of facts”.
14. In the legal arguments and submissions it was stated that the authorities on the principle guiding the grant or refusal of an application for leave to amend pleadings are clearly in favour of the grant of this particular application. Citing AKANINMO V.NSIRIM (2008) 9NWLR (Pt1039) Pg.439@ 460 where the Supreme Court held that : ‘‘ The law is indeed well settled that an amendment of pleadings should be allowed at any stage of the proceedings unless it will entail injustice to the other side responding to the application. The application should be granted unless the Applicant is acting malafide or by his blunder , the Applicant has done some injury to the Respondent which cannot be compensated by cost or otherwise.’’ That :
‘‘ That the aim of an amendment is usually to prevent manifest justice of the cause from being defeated or delayed by formal slips which arise from negligence of counsel.’’
15. It was submitted that a cursory look at the proposed amendment will show that it will not only assist the Honourable Court to dispense justice as it ought to be done but to do so effectively without any adverse incidence(s) on the Defendants/ Respondents. That Order 26 Rule 2 and 3 of the 2017 Rules of this Court provides:
‘(2) 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.
Provided that the party may not completely change the cause of action endorsed on the process.
(3) The Court may at any time, and on such terms as to cost or otherwise as the Court or Judge may think just allow a party to amend any defect or error in any process, and all necessary amendments shall be made for the purpose of determining the real question or issues in controversy raised by or arising from the proceedings.’’
16. That a look at this application shows that it is to assist the determination of the real issue in controversy between the parties. That the Claimant in his testimony before the Court as contained in his witness statement on oath dated 23rd May, 2016 stated as follows in paragraph 26:
‘‘(26) That the Defendant thus paid me for a total of 95 unutilized leave days, leaving the balance of 282 unutilized leave days which the Defendant has refused to pay me.’’ That in line with the testimony, the Claimant is thus seeking to amend his statement of facts to claim as follows in paragraph 39 of the proposed amended statement of facts of this application as exhibit OV1:
‘‘ (39)- A Declaration that the Claimant is entitled to payment for 282 un utilized leave days.
An Order directing the defendant to pay the Claimant his leave encashment for 282 un utilized leave days .
17. That it is trite that amendments can be done at any time, even at the close of trial or even on appeal once the essence is to allow for a proper determination of the real issue in controversy between the parties and the other party will not be prejudiced. That the Court of Appeal in UBN V. LAWAL (2012) 6NWLR (PT.1295) 186 P,194 Para F held that an application for amendment can be brought at any stage of the proceeding before judgment, so long as it will not entail any injustice on the other party.
18. In response the Defendant in the written address in support of the Counter affidavit adopted the sole issue for determination raised by the Claimant whether the amendment should be allowed. In the arguments it was submitted that a party can only amend something that is amendable or capable of being amended. Citing SUBEB OF OYO STATE& ANOR V. MORENIKEJI(2015)LPELR-4167(CA) Where per Obietonbara Daniel Kalio the Court Of Appeal held that :
‘‘ As earlier noted, the Respondent’s Learned Counsel argued that an amendment supercedes the process that it amends. That submission is correct only to the extent that the process sought to be amended is not void. You can only amend something that is amendable. Something that is amendable is only something that exists and not something that does not exist. A process filed by a law firm is not one whose existence as a proper process is countenanced in Court by the law. It is a void process. Such a process is therefore not amendable. As Lord Denning famously said in MACFOY V. UAC (1962) AC152 @ 160. ‘‘ You cannot put something on nothing and expect it to stay there. It will collapse.’’ So too with an attempt to amend a process that does not exist in law. You cannot expect to amend such a process and expect the amendment to take effect. It will fail. The result is that the lower Court lacked jurisdiction to hear and determine the matter. Where a Court lacked Jurisdiction to hear and determine the matter it cannot validly exercise any judicial power over it.’’
19. It was then submitted that there is no valid statement of facts capable of being amended by this Honourable Court. Reliance for this was placed on Order 6 R 1(1) (2) of the 2017 Rules of this Court which provides :
‘‘ (1) A Claimant or Counsel shall, on presenting any originating process for filing and sealing, leave with the Registrar as many copies of the process as there are Defendants or Respondents to be served and one copy for endorsement of service on each Defendant or Respondent.
(2) Each copy shall be signed by the Claimant suing in person or by the Counsel otherwise and shall be certified after verification by the Registrar as being a true copy of the original process filed.’’
20. It was argued further by the Respondent to the motion that it was instructive to note that Order 6 R.1.(1) uses the word shall and it was submitted that the word shall used in a legislative context denotes an obligation or command referring to the Supreme Court case of SALIK V. IDRIS(2015) FWLR. The Respondent referred the Court to the Amended Complaint dated 23rd May, 2016, the basis on which the present suit was litigated. That a perusal of the Court’s copy of the Amended Complaint would clearly reveal that same was neither filed by the Claimant nor his Counsel as required by Order 6 R.1(1),(2) of the 2017 Rules of this Court.
21. In the above premise, it was submitted for the Respondent that that an unsigned originating process is invalid and robs the Court of its jurisdiction citing FEBSON FITNESS CENTER & ANOR V. CAPPA HOLDINGS LTD & ANOR (2014) LPELR-24055(CA) where the court Per Tani Yusuf Hassan, J.C.A @ p12 para C-D held : “ The principle of Law is that an initiating process whether Writ of Summons, Originating Summons or Notice of Appeal must be valid to confer jurisdiction on a Court to adjudicate between the parties on the subject matter in dispute. But where process is not signed by by a litigant or his counsel, the process is invalid and the jurisdiction of Court is ousted – OKARIKA V. SAMUEL (2013) 2SCNJ 429.’’
22. It was submitted further that the statement of facts cannot stand alone as the Statement of facts takes its life from the Complaint and in this case, the Amended Complaint. Further reliance was placed on the case of ODILI V. NIGERIA AGIP OIL (2018) LPELR 45165 (CA) Per Ahmad Olarewaju Belgore where the J.C.A held thus ‘‘The Preliminary Objection is based solely on the fact that writ of summons, being the originating process was not signed either by the Appellant or his legal practitioner …….It has also been submitted for the Appellant that it is not only the Writ of Summons that Constitutes originating process. It is his submission that statement of claim, verifying affidavit, witness statement on oath, etc filed along with the writ of summons together form the initiating process.? With due respect, I beg to differ. What the learned Silk is saying here cannot represent the law as it stands today. All those processes listed by him are only required to be front-loaded and filed along with the originating process, i.e the Writ of Summons. While none of those processes can stand alone as originating process, Writ of Summons has globally been accorded that designation….’’. The case of DIAMOND BANK V. TRANTER INTERNATIONAL LTD & ANOR (2019 CA) Per Biobele Abraham Georgewill JCA holding @ p37-38 as follows: ‘‘ I am aware though that in law the Statement of Claim supercedes the writ of Summons and so also does an amended process supercede the original process amended. However for this position of law to operate the Writ of Summons to be superseded must be a valid writ of summons…In the absence of any validity in the original writ of summons, the Statement of Claim cannot supersede an invalid Writ of Summons by way of giving life to a suit commenced by means of an invalid Writ of Summons. So also an incompetent originating process cannot subsequently be amended to render it competent. Let me explain! An origination process, such as the Writ of Summons in this appeal not properly signed as required by law and thus incompetent cannot be superseded by a properly signed Statement of Claim. It cannot also be subsequently amended to become competent as it is incurably bad for all purposes. In law once an originating process of Court is incurably bad, then that is the end of the matter. It cannot subsequently be amended to render it competent. One cannot put something on nothing and expect it to stand.No! It would not stand but would surely and definitely collapse!’
23. Lastly, it was submitted that since the statement of facts sought to be amended accompanies an unsigned amended complaint, that same is incapable of any amendment since the statement of facts is as non-existent as the amended complaint dated 23rd May, 2016 and the Court urged to dismiss the application with costs.
24. The Claimant in the further and better affidavit responding further had averred that Counsel had only said in the supporting affidavit that he was in the process of preparing it when he discovered the need to amend the Claimant,s statement of facts. That he signed all processes accompanying the amended complaint of 23rd May, 2016. That he signed the Complaint of 27th November, 2015 by which this case was instituted. That the signature appearing on the complaint of 27th November, 2015 is his. That he had applied on 25th May, 2016 to amend the complaint of 27/11/15 because the Complaint was erroneously headed ‘WRIT OF SUMMONS’. That every other part of the Complaint reads and clearly shows that it is a Complaint. That the Defendant did not at any state of the proceeding complain about the erroneous heading neither did it oppose the applicaton to amend it or oppose the application of 25th May, 2016.
25. COURT’S DECISION
The authorities on this subject of judicial adjudication are somewhat contradictory especially when considering decisions from the Court of Appeal and the Supreme Court . Having considered the position of the parties earlier in this ruling. I shall base the decision on this motion on decisions of the Supreme Court arising from cases with similar facts and the application of the same principle. Here, the argument has been about whether an unsigned originating process can rob the court of its jurisdiction to hear and go on to determine the case on its merits. In ALIOKE V. OYE & ORS (2018) LPELR (SC) Paras E-F WHERE THE Supreme Court held amongst others that : ‘The need to do substantial justice and to avoid delving in to the error of technicalities is well settled. Even in cases where errors of omission or commission called blunders have been committed, the party blundering is not to incur the penalty of not having the dispute between him and his adversary determined upon the merits.’ See also OJIKUTU V. ODEH (1954) 14 WACA, 640.
26. In the present case I hold that the inadvertence of counsel to sign an originating process ought to be treated as an irregularity which amounts to a technicality as it does not help the substantive rights of the parties before the Court. See also Order 5 R.1 of the Rules of this Court which gives the Court the discretion to treat non- compliance with its provisions as an irregularity. In the premises of the above reasons, the Motion for amendment is hereby granted as prayed upon payment of N10, 000 cost to the Defendants before the next hearing date. It is further ordered that the Claimant files and Serves the Defendant with his final written address within 14 days of this Ruling.
27. It is ordered finally that the Claimant upon an application made to this Court shall be allowed to sign the said writ on or before the next date to which this matter shall be adjourned. See further Order 5 R 4 (a) and (b), of the 2017 Rules of this. Ruling is entered accordingly.
The case is adjourned to 28th of July, 2021 for adoption of final written addresses.
Hon. Justice E.D.E Isele