IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP: HON. JUSTICE S.A.YELWA

 

 

12TH MARCH, 2024                                                 NO: NICN/LA/244/2023

BETWEEN

 

POWERGEN RENENWABLE ENERGY NIGERIA  LIMITED - CLAIMANT

AND

OLUWATONILOBA OLUWABUSAYO FALADE                - DEFENDANT

 

 

RULLING

 

By a Motion on Notice dated 27th November; 2023 and filed on 28th November; 2023, the Claimant/Applicant prays for:

1)    An order of this Honourable Court, striking out or discountenancing the Defendant’s Reply to Statement of Defence to Counterclaim and accompanying processes dated 7th November; 2023.

2)    And for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this case.

 

The Motion contains 4 Grounds upon which it is brought as enumerated fully on the face of the Motion paper. In support of the motion is a 10 paragraphs affidavit deposed to by Segun Dada, male, adult, Christian and Litigation Officer of 14, Royal Palm Drive, Osborn, Foreshore Estate, Phase 2, Lagos. The Motion is accompanied by a Written Address in which counsel formulated a single issue for determination, to wit:

“Whether the Defendant’s purported Reply to Defence to Counterclaim and other accompanying processes are competent in Law and under the National Industrial Court Rules, 2017”

 

While moving the application, counsel for the Applicant (Mr Charles Okeke Esq) relied on the facts in the supporting affidavit and adopted the written address as his argument.

Counsel posited that the purported Reply to Defence to Counterclaim and other accompanying processes are incompetent and liable to be struck out from the records of this Honourable Court. Counsel maintained that by design, litigation follows some restrictive order and that, it is not an open-ended in order to save the precious times of both the Honourable Court and litigants.

 

Counsel submitted that: If the procedure of pleadings had not been introduced in litigation, parties’ search for evidence could not have ended and that should have protracted litigation beyond expectation. He referred this court to the decision of the Apex Court in  OKOLO & ANR V UBN LTD (2004) LPELR 2465 P34 D-E. He further referred this court to Order 33 of the Rules of procedure of this court, 2017 in his bit to draw the attention of this Court to the extent how the Rules carefully lay down the procedural framework of actions before this court.

 

It was the submission of counsel further that it is very clear from the provisions of Order 33 that a reply to defence (and defence to counterclaim) should end the pleadings. Thus, the Rules do not anticipate a reply to the Defence to Counterclaim. He submitted that had the Rules of this court intended otherwise; it would have made provisions for same.

 

Moreso, in his submission, counsel stated that by Order 30 Rule 19, of the Rules of this Honourable Court 7 days is provided for the closure of pleadings from filing of a reply to defence, except in the circumstance of an order for further pleadings to which is not the case in this matter. Counsel contended that the failure to seek for, and obtain leave of court before filing the purported reply to the defence to Counterclaim automatically renders the processes incompetent, hence he referred the court to the case of ONYEMA V EZEIRUKA (2018) LPELR 45018 CA.

 

Counsel finally urged this court to resolve the sole issue he formulated abinitio in favour of the Applicant by granting the motion.

 

On the other hand Mr Ogunkanmi Esq for the Defendant/Respondent while reacting to the application stated that he did not file any Counter Affidavit in contest but that he has filed and served A Written submission on points of law which is dated 1st December, 2023 and filed the same day. He adopted the written submission as his legal argument. Counsel further adumbrated by way of emphasis and he submitted that the gravement of his case is that, the counterclaim of the defendant is a distinct suit on its own.

 

IN his Written Submission, Counsel set up a sole issue for the determination of the Motion to wit:

 

“Whether under the Rules of this Honourable Court and decided case law, the Defendant/Counterclaimant in this case is entitled to file a Reply to Defence to Counterclaim”

While submitting, counsel took most of his time to define “COUNTERCLAIM” which he rounded up with aid of case laws. He maintained that Counterclaim is an independent suit which for convenience of procdure is combined in another action. He cited the cases of GEN.YAKUBU GOWON V MRS EDITH IKE OKONGWU (2003) LPELR 64/97, AMATTA V OMOFUMA (1997)NWLR PT485 @108, PARAS F-G, AKINTOLA V VICE CHANCELLOR, (2004)11NWLR PT 885 P616 in an effort to clarify  for clarity of what counterclaim entails.

 

Counsel further submitted that under Order 33 of the Ruies of this court, a Reply to defence where a counterclaim is pleaded is also regarded as a defence to counterclaim and shall be subject to all rules applicable to defences.

 

Furthermore, Counsel referred this court to the cases of:  AGANGA WILLIAMS V Q21 SOLUTION LTD (2018) LPELR 46630 CA and MUFUTAU BAMIDELE V PROF. OLUGBEMIRO JEGEDE &ORS (2022) JELR 109969 PER ODILI JSC on the reason why Rules of COURT should be obeyed and followed as they are part of the support system in the administration of justice.

 

Counsel finally submitted that in the event this court finds that the Rules of this court does- not explicitly provide for Counterclaimant’s Reply to defence to counterclaim, strict adherence to the rules of the court as such will greatly hamper the defendant/Counterclaimant’s right to fair hearing and as a consequence, occasion grave injustice on the defendant/ counterclaimant and as such strict adherence should not be observed by this court.

 

Counsel urged the court to strike out the application with cost.

 

 

THIS HONOURABLE COURT, upon careful perusal of  all the processes on both sides in relation to this matter and after listening to the submissions of Learned counsel. To my mind, the issue that is worthy determination is germane with the issues raised by both counsel.  Accordingly, I hereby formulate a lone issue to wit” Whether the defendant’s Reply to Defence to Counterclaim filed in this suit is proper and competent in Law”

 

It is trite law and practice that component of pleadings in this court entails The Statement of Facts (which is akin to statement of claim in other jurisdictions) The Statement of Defence, The Reply, The Counterclaim and Defence to Counterclaim.

 

Order 30 Rules 1, 2 (1) (2) & (3) of the Rules of this Court,2017 provide for pleadings generally, in detail. Other relevant provisions are in Orders 31, 32 and 33 all encompassing on settlement of pleadings. Therefore, parties must adhere to the Rules in filing and exchange of their pleadings except where leave of court is needed in cases of regularization.

 

What is before this court is an Application seeking for striking out or discountenancing with the Reply to defence to Counterclaim which the Claimant contends that such move is alien to the Rules of procedure of this court and so filing of Reply to the statement of defence becomes strange as it is constituted.

 

Order 33 Rule 2 of the Rules of this court is very clear which is to the effect that where a counterclaim pleaded, a Reply to it known as Defence to Counterclaim which shall be subject to the Rules applicable to defence. There is no express order in the RULES that approves for the steps taken by the defendant.

 

The Supreme COURT has held in ENTERPRISE BANK LTD V AROSO (2014)3 NWLR, Pt 1394, p256 that “It is now notorious and trite that all Rule of courts should be obeyed and followed” this is because Rules of court are not for fancy or fun or window dressing, since they are of help in regulating prosecution of cases in court, such that they occupy a place akin to a roadmap for quicker convenience.

 

I read through the written submission of defendant/Respondent in this matter, much about it is only the definition and nature of the term counterclaim. Counsel did not supply- materials to merit his opposition. The cases cited along side with the provisions of the National Industrial  Court of Nigeria Civil  Procedure Rules 2017ar e supportive of the Applicant’s case.

 

Rules of court provide a smooth path for adjudication, hence there must be an end to litigation. In the circumstances of this application, I see reason in granting this application.

 

 

 

 

 

 

 

 Accordingly, this application is granted as prayed. The defendant’s Reply to Statement of defence to Counterclaim and the accompanying processes thereto dated 7th November,2023 and filed same day is hereby struck out. PARTIES are to bear their respective cost.

 

Ruling is accordingly entered.

 

 

………………………………………

HON. JUSTICE S.A.YELWA

(JUDGE)