IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HONORABLE
JUSTICE E.D SUBILIM
DATE: 26TH
APRIL 2024 SUIT NO:
NICN /ABJ/365/2023
BETWEEN
AMEENAT
LAWAL ……………… CLAIMANT/RESPONDENT
AND
COLENCO
CONSULTING LIMITED… DEFENDANT/APPLICANT
REPRESENTATION:
Zhokwo Zhokwo Esq,
with Courage Agbonjinmi Esq, for
Claimant
R.O
Atabo, SAN with A.G Haruna Esq, I.D
Haruna Esq, and D.A Onyiaocha Esq for
Defendant
RULING
1.
Claimant via a General
Form of Complaint, Statement of Facts and other frontloaded processes dated 11th of December 2023 and
filed 13th of December 2023 commenced this suit against the
Defendant seeking the Honorable Court for the following reliefs:
a.
A
DECLARATION of this Honorable Court that the Notice of Termination dated 30th
October 2023 issued by the Defendant to the Claimant terminating her appointment
as a staff of the Defendant on 1st November 2023 without any reason
whatsoever is wrongful, unlawful, unfair, unconstitutional, null and void and
of no effect whatsoever.
b.
A
DECLARATION of this Honorable Court that the Termination Letter dated 30th
October 2023 issued by the Defendant to the Claimant terminating her
appointment as a staff of the Defendant on 1st November 2023 without
any reason whatsoever is in contravention of the Contract Agreement executed
between the parties, the provision of the Termination of Employment Convention
No. 158 of 1982, Termination of Employment
Recommendation, 1982 (No. 166) and therefore wrongful, unlawful, unfair,
unconstitutional, null and void and of no effect whatsoever.
c.
AN
ORDER of this Honourable Court setting aside the purported Notice of
Termination issued by the Defendant to the Claimant for being perverse
wrongful, unlawful, unfair, unconstitutional, null and void and of no effect
whatsoever.
d.
AN
ORDER of this Honourable Court setting aside the purported Termination Letter
issued by the Defendant to the Claimant for being perverse wrongful, unlawful,
unfair, unconstitutional, null and void and of no effect whatsoever.
e.
AN
ORDER of this Honorable Court directing the Defendant to pay to the Claimant
all her salaries, allowances, emoluments and entitlements outstanding from the
date of the said offending termination until she is reinstated.
f.
AN
ORDER of this Honourable Court compelling the Defendant to produce evidence of
remittance of the statutory taxable deductions/PAYE and pension from Claimant’s
salaries whilst she was in its employment to the appropriate authorities.
g.
AN
ORDER of this Honorable Court directing the immediate reinstatement of the
Claimant to the employment of the Defendant.
h.
The Sum
of N 50, 000,000.00 (Fifty Million Naira) being general damages against the
Defendant for wrongful termination of appointment.
i.
The sum
of Five Million Naira (N5,000,000.00) legal cost of this action.
j.
10%
post judgment interest monthly until the Judgment is liquidated.
k.
Any
Order this Honourable Court may deem fit to make in the circumstances.
2.
The Defendant
responded by entering conditional appearance together with the Defendant’s
Statement of Defence and other accompanying processes all dated and filed 26th
of January 2024. While a Reply to the Defendant’s Statement of Defence dated
and filed 7th February 2024 was filed by the Claimant.
3.
The Defendant on the
15th of February 2024 filed a Motion on Notice praying the Court for
the following reliefs:
i.
AN ORDER dismissing or
striking out the Claimant’s Reply to the Defendant’s Statement of Defence and
any Witness Statement or Additional Witness Statement filed in proof of same
for being incompetent and constituting an abuse of Court Process; and
ii.
SUCH FURTHER OR OTHER
ORDER(S) as this Honorable Court may deem fit to make in the circumstances.
4.
The grounds upon which
this application is brought includes:
a.
The averments in the
Defendant’s Statement of Defence are direct response to and/or denials of the
facts averred in the Claimant’s Statement of Claim and as such do not raise any
new issue to warrant a Claimant’s Reply.
b.
The averments in the
Claimant’s Reply to the Defendant’s Statement of Defence are restatement of
facts already pleaded in the Claimant’s Statement of Claim and denial of/response
to the averments in the Defendant’s Statement of Defence which are themselves denials
of/response to the averments in the Statement of Claim.
c.
The Claimant is only
entitled by law to file a Reply to respond to new issues raised in the
Defendant’s Statement of Defence: the Claimant is not entitled to file a Reply
to restate issues already pleaded in her Statement of Claim or to deny/respond
to averments made in the Statement of Defence in denial of or response to
issues pleaded in its Statement of Claim.
d.
There must be an end
to pleadings.
e.
The Defendant is over
reached by the Claimant, since the Defendant has no any other right to file any
further pleading to respond to the averments in the Claimant’s Reply.
f.
The Reply is an undue
irritation to the Defendant, a contravention of fair hearing and intended to
prejudice the effective administration of justice in this Suit.
5.
The Motion on Notice
is supported by a 6-paragraph affidavit deposed to by one Edwin John,
Secretary/Litigation Officer in the office of the Counsel to the
Defendant/Applicant and a Written Address all filed on the 15th of
February 2024.
SUBMISSION
OF APPLICANT’S COUNSEL
6.
Counsel to the
Defendant/Applicant in his written address raised an issue as to whether the
Claimant’s Reply to the Defendant’s Statement of Defence is incompetent and an
abuse of Court process liable to be dismissed or struck out. On the issue
Counsel submitted that by virtue of Order
33 Rule 1 of the National Industrial Court (Civil Procedure) 2017, a Claimant is entitled to file a Reply to the
Statement of Defence in appropriate
cases where desired. However, it is only permissible in law for a Claimant to
respond or react to new issue raised by the Defendant in his Statement of
Defence. Counsel pointed out that where a Defendant has not raised new issues
in his statement of Defence, a Claimant’s reply is absolutely unnecessary and
will not even be permitted as even in the absence of a Reply, issues are deemed
joined on all material averments in the Statement of Defence. He cited the
authorities of UNITY
BANK PLC v. BOUARI (2008) 7 NWLR (Pt. 1086) 372 at pp. 406-407 E-A; ACHIKE v.
ASAKWE (2000)2 NWLR (Pt. 646) 630 at pp.
639 H; 640 A-H and 641 A; EGESIMBA v. ONUZURUIKE (2002) 15 NWLR (Pt.
791) 466 at 518 F-H; and IWUOHA &ANOR v. NIGERIA POSTAL SERVICE (2003) 5
SCM 104 at 124.
7.
Counsel to the Defendant/Applicant submitted that
where a defendant merely makes averments in his Statement of Defence in denial
of facts averred in the Claimant’s Statement of Claim to tell his own side of
the story in rebuttal of the contrary averments made or story told by the claimant
in its Statement of Claim, there is no issue to warrant the filing of the
Claimant’s Reply. Thus, the Claimant’s Reply in this instant case is vexatious,
incompetent and constitutes an abuse of Court process.
8.
Counsel further added that the subtle
introduction of new facts by the Claimant and reinforcement of its case by the
averments contained in the reply if allowed will seriously derogate from the
Defendant’s right of fair hearing as guaranteed by Section 36(1) of the
Constitution of the Federal Republic of Nigeria 1999 (as Amended). He cited
the authority of ADEPOJU v. AWODUYILEMI (1999) 5 NWLR (Pt. 603) 364 at p.390
H-A. Counsel submitted that any process or proceeding of Court no matter
how well prepared and/or conducted would go to no issue and in fact will amount
to a nullity if it offends the provisions of Section 36(1) of the
Constitution of the Federal Republic of Nigeria 1999 (as Amended). MIDEN
SYSTEM LTD v. EFFIONG (2011) 2 NWLR (Pt. 1231) 354 at 369-370 A-H.
9.
Counsel presented the case of MELAYE v.
TAJUDEEN (2012) 5 NWLR (Pt. 1323) 315 at 341 where it was held that “an
incompetent process is lifeless and legally nonexistent. It is incurably bad
and ought to be thrown without much ado”. Thus, in the instant case,
the incompetent process i.e. Claimant’s Reply is filed in abuse of the process
of the Court, this Honourable Court is entitled and indeed under a duty to
dismiss or strike it out. DUKE v. ADMINISTRATOR GENERAL, PUBLIC TRUSTEE
& ORS (2018) LPELR-44405 (CA); EHIRIM v. GOV. IMO STATE & ANOR (2014)
LPELR-24359(CA).
SUBMISSION
OF RESPONDENT’S COUNSEL
10.
In opposition, the Claimant/Respondent filed a
5-paragraph counter affidavit dated 21st day of February 2024 and
deposed to by EMMANUEL TSEBO, a Litigation Manager in the office of the Counsel to the Claimant/Respondent supported by a
Written Address.
11.
Counsel in his written
address raised the issue as to whether the Claimant’s Reply to the Statement of
Defence is not competent. Counsel argued
that the Defendant in its Statement of Defence introduced an allegation of the
Claimant going AWOL and has a notorious habit and penchant for dereliction of
duty which were issues never raised by the Claimant. He submitted that if not
denied, the Honorable Court is enjoined by the law to take those allegations as
admitted, which invariably affects the case of the Claimant negatively.
12.
Counsel further
submitted that Claimant is at liberty and even enjoined by law to file a Reply
to state his/her response to the new issues otherwise he/she is deemed to have conceded. Order 33 Rule 1 of the National Industrial
Court (Civil Procedure) 2017. He
cited the authorities of NGIGE
v. AKUNYILI &ORS (2011) LPELR-9194(CA); APC v. PDP &ORS (2015)
LPELR-24587(SC); ADEBAYO v. CHRISTINE (2021) 9 NWLR (Pt. 1780) 148; OBIOZOR v.
NNAMUA (2014) LPELR-23041(CA); LIGHTENING NETWORKS LTD v. NYADA &ORS (2023)
LPELER-61010(CA).
DECISION
13.
I have summarized and
reviewed the position of learned Counsels on both sides, I have as well read
thoroughly the processes filed by parties for and against the application,
together with the relevant authorities cited by the learned Counsels. The
question here is whether the Reply filed by the Claimant in response to the
Defendant’s Statement of Defence is competent and proper before this Court.
14.
The function of a
Reply in pleadings has always been for a Claimant to put up an answer to the
defence put up by the Defendant. In ISHOLA
v. SOCIETE GENERALE BANK (NIG) LTD (1997) LPELR-1547(SC) the apex Court had this to say "It cannot
be over-emphasized that the proper function of a reply in the settlement of
pleadings is to raise in answer to the defence, any matter which, to be
admissible in evidence, must be specifically pleaded, or which makes the
defence not maintainable or which otherwise might take the defence by surprise
or, where because of the defence filed, the plaintiff proposes to lead evidence
in rebuttal or to raise issues of fact not arising out of the two previous
pleadings. See Bakare & Anor v. Ibrahim (1973) 6 SC 205, Azeez Akeredolu v.
Lasisi Akinremi (1989) 3 NWLR (Pt.108) 164 at 172 etc." Also Order 33 Rule 1 of the National Industrial
Court (Civil Procedure) 2017, gives
the Claimant a right of response and answer to any defence put up by the
Defendant in a Statement of Defence if he so wishes. See also OLUBODUN v.
LAWAL (2008) 17 NWLR (PT 115)1. Thus, the Claimant in this instant
case has an unfettered right to file a Reply in response to the Defendant’s
Statement of Defence.
15.
However, the right to file a Reply is restricted
to the extent that the said reply must only be in response to issue/facts
raised as defence in the Defendant’s Statement of Defence. That is to say, it
is not necessary for the Claimant to file a Reply when there isn’t any new
issue(s)/fact(s) raised in the Defendant’s Statement of Defence. Neither is it
necessary for a Claimant to file a Reply just to deny averments already stated
in his/her Statement of Claim of which the Defendant denied in his own
Statement of Defence. In UNITY BANK PLC & ANOR VS. MR. EDWARD BOUARI
(2008) LPELR-3411 (SC) at P. 43, PARAS. B-C his lordship Tobi, JSC as to
when a reply would be necessary held thus: "... a Reply is only
necessary where the pleadings (the Statement of Claim and the Statement of
Defence) have joined issues. A Reply is necessary where a Statement of Defence
raises a fresh issue which was not anticipated by the Statement of Claim. Where
a Statement of Defence raises an issue which is already averred to in the
Statement of Claim, a Reply is otiose..." See also OSHODI &
ORS VS. EYIFUNMI & ANOR (2000) LPELR- 2805 (SC) PP. 26-27, PARAS. F-D and
YADADO & ANOR VS. ITACE (2018) LPELR-43866 (CA) PP. 32-34, PARAS. E-D.
16.
In the recent case of ALIYU V. ADAMU & ORS
(2021) LPELR-56641(CA) the Court of Appeal Per UWA JCA held that a
reply to a statement of defence is only necessary where new issues/points are
raised and would need to be responded to. A reply is the defence of the
plaintiff to a counter-claim of the defendant or to the new facts raised by the
defendant in his defence to the plaintiff's statement of claim and shall
therefore be filed to answer the defendant's averments in his counter-claim or
to such new facts that have been raised in the statement of defence.
17.
It is also worthy of note that a reply cannot be
used to correct a previous pleading. A reply is the Claimant’s answer or
response to any issue raised by the Defendant in his defence and which the Claimant
seeks to challenge, deny or admit or object to and it is not permissible in a
reply to a defence "to raise a new ground of Claim or contain any
allegation of fact inconsistent with the previous pleadings of the party
pleading the same.” See IRAWO-OSAN & ANOR V. FOLARIN (2007)
LPELR-9040(CA); NKPA V. CHAMPION NEWSPAPERS LTD & ANOR (2016)
LPELR-40063(CA).
18.
The Claimant/Respondent in paragraph 3 (d-f) of
her Counter Affidavit averred that the Defendant in his Statement of Defence alleged
that she had the notorious habit and penchant for dereliction of her duty and
went AWOL, and this allegation raised new issues which are grievous in
employment matters, of which the Claimant is entitled to respond to. I find
that, since the Defendant in his Statement of Defence averred that one of the
reasons the Claimant’s employment was terminated was as a result of her
notorious absence from work, the Claimant has a right of reply and response to
this allegation as it is a serious ground for termination of employment.
19.
The Claimant did not introduce any fact but
instead responded to allegations(facts/issues) raised in the Defendant’s
Statement of Defence. In MRS. IFEANYI OBIOZOR V. BABY NNAMUA (2014) LPELR-23041
(CA) Page 51-53, Per AGIM, JCA stated: ''As the Supreme Court held in UNITY
BANK PLC v. BOUARI (2008) 2-3 SC (Pt. 11) 1, a reply is necessary where a
statement of defence raises a fresh issue that was not raised or anticipated by
the statement of claim. See also EGESIMBA v. ONUZURUIKE (2002) 9-10 SC. Such
fresh facts that have been elaborately pleaded with specific details require a
specific denial in a reply. Where a fresh fact is pleaded in a statement of
defence, if the plaintiff does not file a reply denying such fact, then he has
admitted the fresh facts as correct."
Per HASSAN, J.C.A in Imande & Anor v. Igbu & Ors (Pp. 35-36
paras. D) (2022) LPELR-57978(CA) (Pp. 35-36 paras. D)
20.
I also find that the response of the Claimant
does not in any way infringed on the Defendant’s right to fair hearing as
provided for in Section 36(1) of the Constitution of the Federal Republic of
Nigeria 1999 (as Amended) as the Claimant was only responding to an
allegation made by the Defendant in his Statement of defence which in fact the
Claimant has a right of response under the doctrine of fair hearing. "In
Joe Golday Co. Ltd v. Co-Operative Bank Plc (2003) 112 LRCN 2372, 2376 (also
reported in (2003) LPELR-1617 (SC), it was held that where an averment in a
statement of defence is not denied in a reply, it is by the rules of pleadings
taken to have been admitted. Again, in Bongo v. Governor of Adamawa State
(2013) 2 NWLR (pt. 1339) 403, 441 it was held that a pleader having filed a
reply to a statement of defence is to specifically deny allegations in the
statement of defence and not generally deny them. Failure to do so is deemed as
an admission. This is procedural (Order 33 Rule 1 of the Rules of this Court),
and indeed in conformity with the provision of s. 36 of the 1999 Constitution
(as amended).
21.
Finally, for a process to constitute an abuse of
Court process, it must consist of the intention, purpose and aim of the person
exercising the right to harass, irritate and annoy the adversary and interfere
with the administration of justice, such as instituting actions between the
same parties simultaneously in different Courts even though on different
grounds. An abuse of Court process may lie in both a proper and improper use of
judicial process in litigation. See AHMED SAKA VS. MR. PELUMI ADEBOIYE; ANOR
(2009) LPELR-4920 (CA); TERI V. AUGUSTINE (2021) LPELR-52655(CA) (Pp. 28-30
paras. F); UNION HOMES SAVINGS LOAN PLC V. AKINTAN (2020) LPELR-51201(CA).
In this instant case, one will not call a response to an allegation introduced
in the Defendant’s Statement of Defence an abuse of Court process, I find that
the Defendant has not provided sufficient proof to show this Court that the
Claimant’s Reply constitutes an abuse of Court process.
22.
While placing emphasis on the authorities cited
above in this ruling, I hereby find that the Claimant’s Reply is competent and
proper before this Court and the Defendant/Applicant’s application lacks merit
and is therefore dismissed.
23.
Ruling is entered. There is no order as to cost.
…………………………………………………
Hon. Justice Emmanuel
Danjuma
