IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HON. JUSTICE I.S. GALADIMA

DATE: TUESDAY 24^TH MARCH 2026                                            SUIT NO: NICN/JOS/5/2022

BETWEEN:

DR. BOT YAKUBU SUNDAY                                                                          CLAIMANT

AND

       LABORATORY TECHNOLOGY (SCIENCE), JOS.

REPRESENTATION:

• H.E Pekes for the Claimant.
• S.S. Obende; W.S Aboki; T.L. Uji for the Defendants.

RULING:

1. This Ruling concerns the Defendants’ Motion on Notice dated 2 December 2025, filed under the applicable provisions of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the inherent jurisdiction of this Honourable Court.
2. The Defendants seek for the following principal reliefs:
   1. An Order granting the Defendants leave to change their Counsel, by allowing S.S. Obende, Esq. to take over subsequent proceedings.
   2. An Order granting the Defendants leave to further Amend their Statement of Defence, in order to join issues with the Claimant’s amended pleadings.
   3. An Order striking out the Claimant’s Defence to the Counter-Claim that accompanied the Claimant’s Amended Statement of Defence, for being an abuse of the process of the court.
   4. An Order of Court discharging/vacating or setting aside the order of this Court made on 8th July 2025 dispensing with the physical presence of the Claimant for the purpose of cross-examination and the direction that the cross examination of the Claimant to be             done by virtual means.
   5. An Order directing the Claimant (sole witness) to attend Court physically for the purpose of being cross-examined by the Defendants.
   6. And for such further order (s) as the honourable court may deem fit to make in the circumstances. 
3. The Application is predicated on 13 grounds which are stated below:
   1. The Claimant commenced this action in 2022, claiming some      reliefs which bother on the dismissal of the Claimant from the employment of the 1^st Respondent.
   2. The Parties duly filed and exchanged pleadings and upon issued           having been joined, the suit was adjourned for hearing.
   3. The Claimant was granted leave to amend his Statement of Facts on 20/5/2025.
   4. The Claimant accompanied his Amended Statement of Facts with the Defence to the Counter-Claim of the Defendants.
   5. The Defendants did not file an Amended Statement of Defence, and there is need to join issues with the Claimant’s Amended Statement of Facts.
   6. After series of adjournments, the claimant opened his claim by testifying in chief on the 8^th day of July 2025.
   7. In the course of the evidence in chief of the Claimant as a witness, a total of about 17 documents were tendered and admitted in evidence, through the Claimant as CW1.
   8. The Court thereon adjourned the suit to the 6^th day of November          2025, for the cross examination of the witness.
   9. When adjourning the suit for CW1’s cross-examination, this Honourable Court directed that the cross-examination be conducted by virtual means.
   10. The Defendants intend to confront and cross examine CW1 on the exhibits already tendered by him in the course of his evidence in chief.
   11. The Defendants further intend to confront the witness with documents pleaded in the Statement of Facts and Statement of Defence.
   12. The physical presence of the witness (CW1) is necessary to enable the Defendants confront and cross examine the witness with the documents relevant to the case of the Defendants.
   13. The Defendants, by this application seek this court to grant equal opportunity to the Defendants for this Court to observe the witness while testifying under cross examination as he did in the course of his evidence in chief. 
4. In support of the motion is a 15-paragraph affidavit deposed to by one Dr. Obiora R. Ejinaka, of Federal School of Medical Laboratory Technology (Science) Jos and a written address.  
5. In the written address the defendants raised a sole issue for determination “Whether the Defendants have made out a case for the Court’s exercise of its discretion in the grant of the Motion”.
6. Counsel for the Defendants submitted that the Court ought to exercise its discretion to secure substantial justice, emphasizing that the reliefs sought are discretionary and must be granted only after a judicial and judicious consideration of what is fair.
7. Counsel further argued that modern courts have moved away from rigid formalism, placing the emphasis instead on securing substantial justice. As a result, errors in pleadings or procedure should be corrected whenever doing so allows the court to address the real issues in dispute. To illustrate this principle, counsel relied on Long-John v. Black (1998) 6 NWLR (Pt. 555) 524, Maikano & Ors. v. Maikano & Ors. (2015) LPELR-4034 (CA), and S.I.E.C. Ekiti State v. N.C.P. (2008) 12 NWLR (1102) 720 at 748–749, all of which confirm that amendments ought to be granted liberally so long as they cause no injustice.
8. Counsel argued that the defence should be allowed to be amended because the primary purpose of amendment is to bring the real issues before the Court. They submitted that a party is entitled to modify, add to, or abandon its claims at any point before judgment, provided no injustice results to the opposing party. In this case, the Defendants merely wish to address the Claimant’s amended pleadings, and the Claimant would suffer no prejudice if the amendment is permitted. Refusing the application, counsel maintained, would deny the Defendants a full opportunity to present their case. In support, they relied on Alsthom S.A. v. Saraki (2000) 14 NWLR (Pt. 687) 415; Arambambi v. Advance Beverages Ind. Ltd (2005) 19 NWLR (Pt. 959) 1 at 32; and N.D.D.C. v. Precision Assoc. Ltd (2006) 16 NWLR 559.
9. Counsel submits that in-person cross-examination is indispensable to a fair trial and constitutes the core of their case. They emphasize that this proceeding turns on both pleadings and live testimony—not merely on documentary interpretation—and therefore the court must gauge witness demeanour. Having seen the Claimant give his evidence-in-chief physically, the court and Defendants would be deprived of that full observational capacity if cross-examination were held virtually. Counsel rely on Ngorka v. AG Imo State (2014) LPELR-22532 (CA) and Ige & Anor v. Akoju & Ors (1994) LPELR-1451 (SC), which affirm that trial judges are best placed to assess credibility when they can see and hear witnesses face to face.
10. Counsel contended that the Claimant had testified in person before the court and that conducting his cross-examination remotely allegedly falls short of the constitutional requirement for a public hearing. They further submitted that virtual testimony could compromise the integrity of the proceedings, creating a risk of external interference or coaching.
11. Counsel argued that a fair hearing demands parity between the parties. Having allowed the Claimant to testify in person, the Defendants should likewise be entitled to conduct his cross-examination face-to-face. Cross-examination, he maintained, is indispensable for testing a witness’s credibility and for confronting them with documents. Here, the Defendants wish to challenge the Claimant with both the exhibits he tendered in chief and the materials referenced in their Defence. Refusing them the opportunity for in-person cross-examination, counsel contended, would effectively eviscerate their right to a full defence. Moreover, they invoked the principle that justice must not only be done but must also be seen to be done, citing Emmanuel v. Obi (2022) LPELR-59336 (CA), Chime & Anor v. Ude & Ors (1996) LPELR-848 (SC), and Okezie & Ors v. Mainstreet Bank Ltd & Ors (2015) LPELR-40886 (CA).
12. Counsel also submitted that by incorporating his Defence to the Counter-Claim into his Amended Statement of Facts, the Claimant breached the NICN Rules and thereby abused the court’s process.
13. In closing, defense counsel asked the Court to allow an amendment to their Statement of Defence, to require the Claimant’s in-court, in-person cross-examination, and to grant all the reliefs set out in the Motion. They argued that doing so would advance substantial justice, secure a fair hearing, and ensure that the parties’ real issues are decided on their merits.
14. In their opposition, the Claimant’s counsel submitted a Counter-Affidavit sworn by Noro Dung, a litigation secretary at H.E. Pekes & Co. They note that although the Motion was filed on December 3, 2025, it was not served until February 16, 2026—only after two adjournments for virtual cross-examination. The Claimant then presented evidence-in-chief on July 8, 2025, having received leave to amend on May 20, 2025. Finally, they argue that the Defendants failed to amend their Statement of Defence within the time prescribed by the Rules.
15. On 8 July 2025, although they were out of time to do so, the Defendants agreed to the Claimant opening his case. They have offered no explanation for their failure to amend within the proper period. Allowing an amendment at this late stage would unfairly prejudice the Claimant as the sole witness, depriving him of a fair opportunity to respond.
16. Virtual cross-examination still permits the Defendants to assess the Claimant’s demeanour. The Claimant contends that the Defendants have not met the requirements for setting aside the Court’s 8 July 2025 order allowing remote cross-examination. He further argues that granting their application would constitute an overreach, prejudice him, and that, in the interests of justice, it should be refused.
17. Supporting the Counter-Affidavit is a written address in which the Claimant poses a single issue for determination: whether, on the affidavit evidence before the Honourable Court, the Defendants have established a case warranting the grant of this application.
18. The Claimant contends that, although the court’s power to allow amendments is governed by Order 28 of the NICN Rules, that discretion may be withheld where the proposed amendment would:
     • Cause injustice;
     • Unfairly burden or overreach the opposing party;
     • Be motivated by mala fide intent;
     • Be unreasonably delayed; or
     • Require the admission of fresh evidence.
     He submits that, on each of these grounds, the Defendants’ application for leave to amend falls short and should therefore be refused.
19. Counsel argued that once pleadings have closed, they may only be amended to correct clerical mistakes or to reflect evidence already on record, since any further amendments would unfairly prejudice the other party. He relied on Eke v. Akpu (2010) ALL FWLR Pt. 510 640 at 657; Sanni v. Abdulsalam (2010) ALL FWLR Pt. 258 966 at 987–988; and Fasuan v. Awoyemi (2006) ALL FWLR Pt. 334 1906 at 1925–1927.
20. Counsel argued that the Defendants had from May 2025—when the Claimant’s last amendment was allowed—until July 2025—when the Claimant gave evidence—to apply for any amendments but instead remained idle until after the evidence-in-chief. As the maxim holds, “equity aids the vigilant, not the indolent.” Counsel relied on Ogbeide v. Osifo (2007) All FWLR 548 at 567 and Ikpana v. Registered Trustees, P.C.N. (2006) All FWLR 310 at 1703–1726.
21. Counsel argued that having been granted leave to amend his statement of claim in May 2025, the Defendants neglected to amend their statement of defence—an inaction amounting to indolence or a waiver of their rights.
22. Counsel maintained that because the Court has already exercised its discretion in issuing the virtual-attendance order, the Defendants have failed to demonstrate any grounds—such as fraud, nullity, lack of jurisdiction or other procedural defect—for setting it aside. They further submitted that, absent exceptional circumstances, the Court is functus officio with respect to that order; that the claimant’s hardship as a Uganda resident was expressly considered when the order was made; and that the order has not been appealed.
23. Counsel argued that the reply to the counter-claim was properly filed in response to the most recent amended defence and did not constitute an abuse of process.
24. In conclusion, the Claimant asks the Court to deny the application in full, with the sole exception of the request to change counsel.
25. The parties Counsel adopted their respective processes on the 3^rd March 2026 necessitating this ruling today. 

RESOLUTION

26. Having considered the submissions of both counsel and the issues they raised, the sole question for determination is whether the Defendants have demonstrated sufficient grounds to justify this Court’s exercise of discretion in granting the reliefs they seek.
27. Regarding the first relief sought which is for change of counsel, a party is entitled to be represented by the lawyer they select. Order 54 of this court’s rules 2017 governs the change of counsel. It provides that a party may change legal practitioner without an order for that purpose. No exceptional reason has been shown to deny this request. The application is essentially a housekeeping matter that ensures the smooth administration of justice.
28. Having considered that the claimant does not oppose the relief, and being satisfied that the proposed change will not prejudice the claimant or cause undue delay to the proceedings, I hereby grant the defendants leave to change counsel to S.S. Obende, Esq. 
29. Regarding the second request to amend the Statement of Defence, the law entrusts the Court with the power to allow changes to pleadings, and that power must be exercised wisely and fairly to bring the real issues in dispute into clear focus. 
30. Order 26 rule 2 of this court’s rules 2017 provides that a party may at any time, but not more than twice with the 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. Order 26 rule 3 further provides that the court may at any time, and on such terms as to costs or otherwise as the court thinks 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 questions or issues in controversy.
31. In ALSTHOM S.A. v. Saraki (2000) 14 NWLR (Pt. 687), the Supreme Court held that amendments are designed to correct counsel’s errors, oversights or inadvertent slips so that the genuine controversy is properly presented for the Court’s determination.
32. In NALSA & Team Associates v. NNPC (1991) LPELR-1935 (SC), the Supreme Court held that the purpose of allowing an amendment is to enable the court to decide the real issue in dispute, and that such amendments should ordinarily be permitted so long as they do not cause injustice. It is also well-settled that an amendment may be made at any stage before judgment, provided it does not unfairly prejudice the opposing party (see NDIC v. Precision Associates Ltd (2006) 16 NWLR (Pt. 1002) 559).
33. Here, the Defendants seek to amend their Statement of Defence in response to the Claimant’s amended Statement of Facts. In my view, the proposed amendments are designed to allow the Defendants properly to engage with the issues raised by the Claimant’s revised pleadings. Although the Claimant has already given his evidence-in-chief, the trial has not yet concluded, and no final determination has been reached.
34. The Court recognizes that its foremost duty is to secure substantial justice. Although allowing amendments lies within its discretion, it is well established that parties should not be prevented from presenting their case because of procedural lapses that can be remedied without prejudicing the other side. In this instance, I am convinced that the requested amendment will enable the Court to resolve the true issues between the parties. Leave to amend the Statement of Defence is therefore granted.
35. The third relief seeks to strike out the Claimant’s Defence to the Counter-Claim—appended to his Amended Statement of Facts—as an abuse of the court’s process. The Defendants argue that this Defence must be expunged because it was improperly embedded in the Amended Statement of Facts.
36. Order 30 rule 2 of our rules 2017 provides that a counter claim shall be treated as a separate claim, allowing for all pleadings applicable to the main claim to apply to the counter claim as well. Meanwhile, Order 13 rule 3 (3) of the Federal High Court Civil Procedure Rules 2009 – which is persuasive authority, provides that where a plaintiff intends to file both a reply and a defence to counter claim, he shall include them in the same document.
37. Under our pleadings regime, a defence to a counter-claim stands on its own and must be filed as a separate Reply and Defence to Counter-Claim, not appended to the Statement of Facts. Placing a Defence to Counter-Claim inside the amended Statement of Facts is procedurally flawed and amounts to an improper joinder of pleadings. Pleadings exist primarily to delineate the precise issues in dispute so that each party knows the case it must meet. See Akiduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312.
38. In John Okokon v Nigeria Maritime Administration & Safety Agency (unreported) suit number NICN/LA/401/2022 ruling delivered on 28/5/2025 per Yelwa, J this court recognized that the defence to counter claim is part of the pleadings cycle in counter proceedings. The critical consideration is whether the opposing party has been prejudiced by the manner of filing, not whether the document was filed separately or together with another pleading. 
39. Nevertheless, allowing a Defence to Counter-Claim to be embedded within an amended Statement of Facts would defeat the orderly structure of pleadings and may occasion confusion in the determination of the issues. I therefore find merit in the objection raised by the Defendants.
40. Consequently, the aspect of the Claimant’s Amended Statement of facts containing the Defence to Counter-Claim is an abuse of court process and is hereby struck out.
41. However, in order not to shut out the Claimant from responding to the Counter-Claim, and in the interest of substantial justice, the Claimant is hereby granted leave to file a Reply and Defence to Counter-Claim within 14 days from the date of this ruling. The Defendants shall file any consequential process within 7 days thereafter.
42. The fourth and fifth reliefs are closely related. The Defendants seek to set aside the Court's order of 8th July 2025 dispensing with the physical presence of the Claimant for cross-examination and directing that cross-examination be conducted by virtual means and further seek an order directing the Claimant's physical attendance.
43. The principles governing the setting aside of a court's own order are well established. The doctrine of functus officio provides that once a court has decided a matter, it becomes functus officio and lacks competence to review or revisit its decision. However, there are recognized exceptions to this doctrine. Some of these exceptions include:

a. Where there has been a clerical mistake or error arising from accidental slip or omission;

b. Where the judgment does not correctly represent what the Court actually decided;

c. Where the order is a nullity owing to failure to comply with an essential provision; and

d. Where the judgment or order is made against a party in default.

44. A court possesses inherent powers to set aside its own judgment where it is afflicted by fundamental vices such as lack of jurisdiction, fraud, breach of right to fair hearing, or where the suit was commenced without due process – See UBA v. Ukachukwu (2006) All FWLR Pt. 337 Pg. 515.
45. The Defendants contend that the order for virtual cross-examination should be set aside because:

a. Virtual cross-examination compromises the assessment of witness demeanour;

b. The Claimant testified in person and should be cross-examined in person for parity;

c. Virtual testimony may compromise the integrity of proceedings; and

d. The Defendants wish to confront the witness with documents, which requires physical presence.

46. However, the Defendants have not demonstrated that the order of 8th July 2025 falls within any of the exceptions to the functus officio doctrine. They have not shown that the order is a nullity, was made without jurisdiction, was obtained by fraud, or that there was any procedural defect in its making. The order was made after due consideration of the circumstances then prevailing, including the Claimant's residence in Uganda.
47. In Okafor Chidi Justin v. NLNG Shipping and Marine Services Ltd & Ors (2025) NICN/ABJ/314/2024, this Court (per Justice E.D. Subilim) held that virtual hearings are permissible under the NICN Practice Directions and Guidelines, and that the NICN has adopted virtual sittings to complement physical hearings, recognizing benefits in terms of cost and time savings. The Court noted that Order 36 Rule 33 of the NICN Rules allows trial on record, and virtual hearing is consistent with this provision.
48. Contemporary case law does not uphold the contention that virtual cross-examinations impair the assessment of demeanour. Advances in video-conferencing make it possible to observe a witness’s conduct effectively. The Court has demonstrated its ability to evaluate credibility remotely in countless hearings during and after the COVID-19 pandemic. The view that demeanour can only be judged in person is not absolute. While decisions such as Ige v. Akoju (1994) LPELR-1451 (SC) acknowledge that a court that sees and hears a witness is generally better placed to assess credibility, this does not render virtual proceedings invalid. Virtual hearings are now an established feature of procedural law and, so long as transparency and public access are preserved, they satisfy the Section 36 constitutional requirement for a public hearing.
49. The Defendants have not shown that holding the cross-examination virtually would deny them a fair hearing. They will still be able to question the witness, display documents electronically, and have the Court observe the witness in real time. The hardship faced by the Claimant was expressly weighed when the earlier order was made, and no new circumstances have arisen to warrant upsetting that discretionary decision. Moreover, one clear benefit of virtual hearings is that they can be streamed live to a wider audience and recorded for later review whenever necessary.
50. The concept of “parity of arms” calls not for mirror-image procedures but for substantive fairness. The Claimant testified in person simply because he was physically present in court at the time. The later order for virtual cross-examination was driven by practical realities, notably his residency abroad. The Defendants have failed to show any significant prejudice from a virtual hearing that could not be managed through appropriate court directions.
51. In the circumstances, the Defendants have failed to establish any ground for setting aside the order of 8th July 2025. The application is hereby refused.
52. By the fifth relief, the Defendants seek an order directing the Claimant to attend Court physically for cross-examination. This relief stands or falls with the fourth relief, which I have refused.
53. Having upheld the order for virtual cross-examination, there is no basis to direct the Claimant's physical attendance against his will, particularly where he has demonstrated hardship by residing in Uganda. The Defendants have not shown that virtual cross-examination would be unfair or that they would be prejudiced in a manner that cannot be remedied by costs or other directions.
54. This relief is accordingly REFUSED.
55. Parties shall proceed with virtual cross-examination on the next adjourned date.

CONCLUSION AND ORDERS

56. In conclusion, I make the following orders:
57. The Defendants' application for leave to change counsel is GRANTED. S.S. Obende, Esq. is permitted to take over subsequent proceedings. The Notice of Change of Counsel shall be filed within 7 days and served on all parties.
58. The Defendants' application for leave to amend their Statement of Defence is GRANTED.
59. The Defendants' application to strike out the Claimant's Defence to Counter-Claim which is incorporated in the amended statement of facts is GRANTED. The Claimant may file and serve a fresh reply and defence to the counter claim within 14 days of this ruling.
60. The Defendants' application to set aside the order of 8th July 2025 directing virtual cross-examination is REFUSED.
61. The Defendants' application for an order directing the Claimant's physical attendance for cross-examination is REFUSED.
62. The suit is adjourned to 19^th May 2026 for the continuation of proceedings in accordance with the order of 8th July 2025. The cross-examination of the Claimant shall proceed by virtual means as previously directed.
63. No costs awarded. 

RULING DELIVERED IN JOS THIS 24^TH DAY OF MARCH 2026.

HON. JUSTICE I.S. GALADIMA

JUDGE.

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