IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated:16th day of April, 2024                                     SUIT NO:   NICN/PHC/110/2022

 

BETWEEN:

 

SANDRA NDIDIAMAKA ANOH-----------------------------CLAIMANT

AND

VEROZ GROUP LTD-------------------------------------DEFENDANT

 

Representations:

Anthony Adesemoye with A. M. Akinro for the Claimant

P. C. Chukwuyem for the Defendant.           

 

Ruling.

This suit was commenced by a general form of complaint filed on the 4th of August, 2022 along with a verifying Affidavit, statement of fact, witness statement on oath, list of witnesses, list of documents to be relied upon and copies of the documents.

In reaction to the claims, the defendant entered an appearance and filed a statement of defence accompanied by a list of witness, witness statement on oath, list of document and a copy of the documents to be relied upon at trial on the 6th day of September, 2022.

 

The Claimant on the 20th day of October, 2022 filed a reply with other accompanying processes in response to the defendant’s statement of defence.

 

The defendant on the 13th day of June, 2023 filed a motion on notice, and the said motion on notice seeks for the following reliefs:

1.        An order granting leave to the Defendant/Applicant to amend its Statement of Defence as per the underlined portions in the Proposed Amended statement of defence marked Exhibit A.

And for such other order or further order as this Honourable Court may deem fit to make in the circumstances.

 

In support of the motion on notice, the Defendant filed a 10 paragraphed affidavit deposed to by one Grace Nwanganga accompanied by one exhibit and a written address.

 

Arising from the written address in support, counsel to the Defendant, P. C. Chukwunyem Esq., proposed a sole issue for determination to wit:

 

Whether or not the court should exercise its discretion in favour of the defendant/applicant by granting the sole relief being sought on the face of the Motion paper.

 

In arguing the said issue counsel submitted that Order 26(1) 26(2) 26(3) and 26(6) of the National Industrial Court Civil Procedure Rule 2017 gives the Court the power to grant the application for amendment. Counsel cited Mobil Oil (Nig) Ltd v Nabsons Ltd (1993) NWLR (pt 407) pg 254. Counsel posits that relating the principles of the case cited above with the present case that it is clear that this amendment is necessitated by the deposition as stated at paragraphs 4a to 8 of the affidavit in Support of the application. Counsel added that pleadings may be amended at any stage of the proceedings before judgment upon good and proper reasons shown. And that the power of the court to amend is discretionary which must be exercised judicially and judiciously having regard to all the circumstances of the case. Counsel cited C.G.G. (Nig) Ltd vs Idorenyin (2015)13 NWLR(Part 1475)149.

 

The Claimant in response to the said motion on notice filed a 16 paragraphed counter affidavit deposed to by Mrs. Ndidiamaka Sandra Anoh (the Claimant) accompanied by a written address filed on the 19th day of June 2023.

Arising from the written address in support of the counter affidavit, counsel to the Claimant A. B. Adesemoye Esq. formulated a sole issue for determination to wit:

Whether or not the Court can exercise its judicial discretion to grant an application capable of overreaching the opponent in an action.

 

In arguing this issue counsel stated that the Court have always frowned at an act by a party to an action to overreach, circumvent, outwit or get the better of something or the other party by cunning or artifice as the Defendant/Applicant intends to surreptitiously do by this application. Counsel cited N.I.W.A. v S.P.D.C.N. Ltd [2008] 13 NWLR (Pt 1103) (Pp. 67-68, paras. H-B). Counsel added that is trite that an amendment of pleading can be granted at any stage of the pleadings provided it does not introduce a new cause of action or will overreach or is prejudicial to the other party. Counsel cited The Shell Pet. Dev. Co. (Nig.) Ltd v Ambash (1999) 3 NWLR (Pt. 593) 1 (p. 10, paras. F-G).

 

Counsel posits that a party should not be allowed to approbate and reprobate at the same time. That the Defendant/Applicant had averred that it never had anything to do with the Claimant/Respondent but after the Reply filed by the Claimant/Respondent is now seeking for amendment in other to react to the Reply of the Claimant/Respondent and that such amendment should not be allowed. Counsel cited Njaba L.G.C. v Chigozie (2010) 16 NWLR P. 1218) 166. Counsel added that Order 26(1), 26(3) and 26(6) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 referred to in paragraph 3.0 of the Address of the Defendant/Applicant on amendment does not support the case of the Defendant/Applicant, and that the amendment sought by the application is not thought out to bring out the real issue and lay same bare for the determination to the Court but rather an overreaching attempt. Counsel urged the court to dismiss the application.

 

I have considered the processes and circumstances in relation to the instant motion and taken into consideration the brief submissions of both counsel in support and in opposition of the application. Accordingly, the sole issue for the determination of the instant application is to wit:

Whether the applicant is entitled to the relief for amendment sought

 

In resolving the sole issue, let me state clearly that the application sought by the Claimants is for an amendment of their pleadings which is their statement of Defence and there are plethora of authorities guiding the court in determining whether or not to grant an application for amendment. In the case of EDEMEKONG & ORS. v. EKPO & ORS. (2012) LPELR-19705(CA) the court held that:

“an amendment to a court process may be allowed or permitted by the court at any stage of proceedings in order to determine the real questions/issues in controversy in a case. This is usually provided for in the Rules of court vesting it with the discretion to allow or order such amendment as the justice of the peculiar facts and circumstances of a case may demand or require. Being a judicial discretion, the law as always, requires that it be exercised by the court both judiciously and judicially, taking into consideration the interests of both sides and weighing them in order to arrive at a fair decision." Per GARBA, J.C.A. (P. 10, paras. A-C).

In the same case, Per TUR, J.C.A. at P. 17, paras. F-G added that, "In all questions of applications to amend process, the court must look at their materiality. See Oyenuga v. University of Ife (1965) NMLR 9; Okafor v. Ikeanyi (1979) 1 FNLR 110 AND Okeowo v. Migliore (1979) 11 SC 138 at 197 - 201."

The effect of the forgoing authorities is that the grant of an application for amendment is at the discretion of the court and the discretion is to be exercised bearing in mind the interest of justice as the case at hand demands. This court reckoned the position that the rules of various courts makes provision for the exercise of the discretion to permit or deny amendment as can be seen in Order 26 Rule 1 and 2 of the National Industrial Court (Civil Procedure) Rules 2017 which provides that

Order 26 Rule 1 provides for circumstances where an application for amendment may be allowed or denied as it provides that:

1.—(1)An amendment may be allowed where its purpose is to determine the real question or issue between parties and would:

(a) secure substantial justice ; or

(b) settle the controversy between parties and related issues.

(2) An amendment may be refused where it would:

(a) present a completely different case, or cause injustice to the other party or where the application for amendment is brought mala fide ;

(b) necessitate the hearing of further evidence especially on appeal ;

(c) not cure the defects in the procedure sought to be cured or where it is inconsistent and useless ;

(d) amount to over-reaching the other party or an abuse of court process.

In view of the forgoing, it is incumbent on this court to therefore consider the nature of the amendment sought by the defendant in order to determine whether same would be allowed or refused. 

To achieve this, I have reviewed the affidavit in support of this application to understand the amendment sought by the defendant and find from the said affidavit, that the defendant/applicant had on the 6th day of September filed a statement of defence, and that as at the time the statement of defence was being filed the defendant omitted some vital information and documents which were in the exclusive possession of the managing director who was as at the time not  within the country for health reasons. That upon his return, he provided the said documents and the defendant deemed it necessary to amend their pleadings in other to furnish the court with the said information and documents as to afford the court the opportunity to determine the real issue between the parties.

The defendant also annexed a copy of the proposed amended statement of defence as exhibit A which is accompanied with witness statements on oath and the said documents which they seek to rely on at trial.

Reacting to the forgoing, the claimant in their counter affidavit posited that the grant of the application of the defendant will be overreaching on the claimant. And also that the defendant is approbating and reprobating at the same time, that the Defendant/Applicant had averred that it never had anything to do with the Claimant/Respondent but after the Reply filed by the Claimant/Respondent is now seeking for amendment in other to react to the Reply of the Claimant.

With regards to approbating and reprobating, there is no dispute that parties are not permitted to approbate and reprobate on the same issue at the same time, however this court has not and cannot at this stage delve into the substance of this suit but considering the fact that the amendment sought borders on the amendment of the pleading, it is considered pertinent for the court to peruse the said pleadings with a view to determine whether the defendant is approbating and reprobating. And having considered same, the proposed amended statement of defence is additional information to already established facts, in other words a deeper clarifications in answer to the statement of facts. Hence, the contention is hereby discountenanced.

With regards to the contention that the application will overreach the claimant, the court in the case of Akaninwo v. Nsirim (2008) All FWLR (Pt. 410) 610 at P. 659 paras D-F provided the meaning of ‘overreach’ when it held that:

"Overreach means to circumvent, outwit or get the better of by cunning or artifice; that is by a clever trick. In the context of amendment of pleadings, it connotes or conveys a situation where a party, fully aware of the case of the adverse party, applies to amend his pleadings, with trick or craftiness, to put the respondent or adverse party in a state of hopelessness or helplessness that he cannot meaningfully respond for the good of his case.” Per. Tobi JSC.

This court has considered the said amendment which the defendant is seeking to amend and have observed that the defendant by this amendment seeks to furnish more information in answer to the claimant’s statement of facts by providing more information. Moreso, the parties are yet to open their cases and the claimant also has ample opportunity to respond accordingly.

Based on the foregoing meaning of overreaching, the claimant has failed to show how the amendment sought will overreach him, consequently, the contention is accordingly discountenanced.

To conclude on the foregoing findings, I take cognizance of the holding of the court in  SUNDAY WILLIE EDEMEKONG & ORS. v. BASSEY DAVID EKPO & ORS. (2012) LPELR-19705(CA) where the court held that:

"The object of the court is to see that justice is done to all the parties. An amendment will be granted if it would bring all the issues at stake before the court for the just determination of all the rights of the parties and not to punish them for mistakes they made in the conduct of their cases by deciding otherwise than in accordance with their rights. Consequently, where an error or mistake of a party is not fraudulent or intended to over-reach, the court would grant or permit such an amendment to correct same if such amendment will not cause injustice to the other party. Bankole Vs. Dada (2003) 11 NWLR pt. 830 page 174." Per NDUKWE-ANYANWU, J.C.A. (P. 14, paras. C-F)

Applying the foregoing authority to the instant suit, I have considered the application before this court for amendment and find that same is in the interest of justice. It is not intended to and does not overreach the adverse party.  It is the view of this court that the amendment sought by the Defendant would not be overreaching the claimant in anyway by the grant of this application.

Consequently, the sole issue is resolved in favour of the defendant to the effect that the Defendant/Applicant is entitled to the relief sought. Consequently, leave is hereby granted to the Defendant/Applicant to amend its Statement of Defence as per the underlined portions in the Proposed Amended statement of defence marked Exhibit A.

In the final analysis, I find the application of the Defendant/Applicant to be meritorious and consequently grant same.

Ruling is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE