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, PhD

 

Dated 8^th Day of May, 2026                  SUIT NO: NICN/PHC/147/2022

 

BETWEEN:

MR. LAWRENCE ONU -------------------------------CLAIMANT

AND

1.  RIVERS STATE MICROFINANCE AGENCY (RIMA)

2.  ATTORNEY-GENERAL OF RIVERS STATE -----------DEFENDANTS

 

REPRESENTATIONS:

Dr. A. C. Nwosu for the Claimant.

Mathias E. Nwosu for the 1st Defendant.

 

RULING

This ruling is in respect of an application brought before this Court by the 1^st Defendant/Applicant seeking leave to further amend its Amended Statement of Defence and to file a fresh Witness Statement on Oath.

 

The Claimant commenced this suit by way of a General Form of Complaint filed on the 19th day of October, 2022. Subsequently, the Claimant amended his originating processes on the 15^th day of March, 2024 and thereafter filed a Further Amended Complaint on the 25^th day of October, 2024 accompanied by the requisite frontloaded processes, including a verifying affidavit, statement of facts, list of witnesses, witness statements on oath, list of documents and copies of the documents intended to be relied upon at trial.

 

In response to the Claimant’s action, the 1st Defendant filed a memorandum of appearance and statement of defence on the 23rd day of November, 2022 together with its accompanying processes. Following the amendment of the Claimant’s processes, the 1st Defendant, on the 13th day of May, 2024, filed an Amended Statement of Defence pursuant to leave earlier granted by this Court.

 

The Claimant also filed replies to the Statement of Defence on the 11th day of January, 2023 and subsequently on the 8th day of October, 2024 in response to the amended defence processes.

 

By a Motion on Notice filed on the 20th day of October, 2025, the 1st Defendant/Applicant seeks the following reliefs:

 

1. An Order granting the 1st Defendant/Applicant leave to further amend its Amended Statement of Defence in the manner set forth and underlined in the Schedule/Memorandum of Amendment and in the Proposed Further Amended Statement of Defence attached to the affidavit in support and marked as Exhibits “A” and “B” respectively.
2. An Order granting the 1st Defendant/Applicant leave to file a fresh Witness Statement on Oath of its sole witness, Otonye Mac-Barango, Esq., in line with the proposed amendment sought, as a substitute for the Witness Statement on Oath earlier filed on the 13th day of May, 2024.
3. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

 

The application is supported by a 10-paragraphed affidavit deposed to by one Otonye Mac-Barango and accompanied by two exhibits as well as a written address.

 

In the written address, learned counsel for the 1st Defendant/Applicant, Mathias E. Nwosu, Esq., formulated a sole issue for determination as follows:

Whether the instant application has merit and should be granted.

 

In arguing the sole issue, counsel submitted that the application is competent under Order 26 Rules 1 and 3 of the National Industrial Court (Civil Procedure) Rules 2017, which permit a party in a suit to seek and obtain leave of court to amend his or her pleadings for the purpose of placing before the court the real issues in controversy for determination. Counsel further contended that the grant of an application for amendment of pleadings is within the exclusive discretion of the court, to be exercised judicially and judiciously in the interest of justice. Reliance was placed on Cropper v. Smith (1884) 26 Ch.D 700 at 710–711.

 

Counsel relied on SPDC v. Ambah (1999) 2 SCNJ 134–135 for the settled principle governing amendment of pleadings, namely that an amendment may be granted at any stage of the proceedings provided it does not introduce a new cause of action, overreach, or prejudice the opposing party. He also cited Elias v. Elias (2001) 9 NWLR (Pt. 718) 429 at paragraph H. Counsel further submitted that the instant application is necessary to correct errors and omissions in the 1^st Defendant’s Amended Statement of Defence and to properly respond to the Claimant’s Further Amended Statement of Facts, while narrowing the issues for trial to the real matters in controversy. He maintained that granting the application would not occasion any injustice to the Claimant or the 2^nd Defendant, as no new cause of action would be introduced by the proposed amendment.

 

The Claimant in opposition to the said motion on notice filed a 4 paragraphed counter affidavit deposed to by Mr. Lawrence Onu (the Claimant) accompanied by a written address filed on the 24^thday of November, 2025.

Arising from the written address in support of the counter affidavit, counsel to the Claimant Dr. A. C. Nwosu Esq. formulated a sole issue for determination as follows:

 

Whether the 1^st Defendant/Applicant is entitled to the relief sought?

In arguing the sole issue counsel submitted that the application sought by the defendant will overreach the claimant which if granted will result in injustice to the Claimant. Counsel relied onKode V. S. Yussuf (2001) 4 NWLR (pt 703), 392 @ 415 para A. 418 C-A.

 

Counsel contended that the application is mala fide and brought in bad faith, noting that the Claimant further amended his processes on 25/10/2024, and that the Defendant/Applicant waived any right to amend after the expiration of the stipulated 7 days. He pointed out that more than a year has elapsed since the Claimant’s amendment, during which the matter has progressed to trial, with the Claimant’s sole witness having testified, tendered all documents, and closed his case. Counsel argued that the Defendant/Applicant deliberately lay in ambush until this stage before seeking to introduce an amended Statement of Defence. He submitted that granting the application would occasion prejudice to the Claimant. Reliance was placed, inter alia, on Chidoka v. First City Finance Co. Ltd. (2001) 2 NWLR (Pt. 697) 216 at 225, paras. A–C.

 

In conclusion counsel urged the court to refuse the application of the 1^st Defendant for being malafide.

 

I have considered the processes filed and the circumstances surrounding the instant application, together with the submissions of learned counsel both in support of and in opposition to the motion. Accordingly, the sole issue for determination in this application is as follows:

 

Whether the 1st Defendant/Applicant has made out a case warranting the exercise of this Court’s discretion in granting the reliefs for amendment sought.

 

In resolving the sole issue, let me state at the outset that the application before this Court relates to the amendment of pleadings, specifically the Statement of Defence of the 1st Defendant/Applicant. The law is well settled that there exists a plethora of judicial 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 thus:

 

“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, TUR, J.C.A. further stated at page 17, paragraphs F–G as follows:

 

“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 foregoing authorities is that the grant of an application for amendment lies within the discretionary powers of the Court, which discretion must be exercised judicially and judiciously in the interest of justice, having regard to the peculiar facts and circumstances of each case.

 

This Court also reckons with the provisions of the Rules of Court governing amendment of processes. In that regard, Order 26 Rules 1 and 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 make provisions regulating circumstances under which an amendment may be granted or refused.

 

For ease of reference, Order 26 Rule 1 is hereby reproduced below:

 

“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 foregoing provisions, it becomes incumbent on this Court to examine the nature and character of the amendment sought by the Defendant/Applicant in order to determine whether same ought to be granted or refused.

 

To this end, I have carefully examined the affidavit in support of the application in order to ascertain the basis and necessity for the proposed amendment. From the depositions therein, it is disclosed that the Defendant/Applicant initially filed its Joint Statement of Defence on the 23rd day of November, 2022 and subsequently filed an Amended Statement of Defence on the 13th day of May, 2024 pursuant to leave granted to the Claimant to amend his originating processes.

 

The Applicant further averred that at the time of filing the Amended Statement of Defence, certain vital facts were inadvertently omitted and some errors requiring correction were made. It was equally deposed that the proposed amendment became necessary in view of fresh facts introduced in the Claimant’s Further Amended Statement of Facts filed on the 25th day of October, 2024, thereby necessitating a further amendment of the Statement of Defence in order to adequately respond to the issues raised therein.

The Defendant/Applicant also annexed copies of the Schedule/Memorandum of Amendment and the Proposed Further Amended Statement of Defence marked as Exhibits “A” and “B” respectively.

 

In response to the foregoing, the Claimant, through the Counter-Affidavit filed in opposition to the application, contended that granting the application would overreach the Claimant and occasion injustice. The Claimant further asserted that the application was brought mala fide and in bad faith, particularly as the Claimant had filed his Further Amended Statement of Facts on the 25th day of October, 2024, and the Defendant had ample opportunity within the prescribed period to amend its defence but failed to do so.

 

The Claimant also pointed out that trial had substantially progressed, in that the sole witness for the Claimant had testified, documents had been tendered, and the Claimant had closed his case.

 

It is however a settled principle of law that amendment of pleadings may be allowed even at the stage of trial, provided that such amendment will not occasion injustice or prejudice to the adverse party. I must state that delay or lateness alone does not constitute sufficient ground for refusing an application for amendment. The true test remains whether the proposed amendment would occasion such injustice as cannot be compensated by costs or by affording the adverse party an opportunity to react appropriately to the amended process.

 

With respect to the contention of the Claimant that the application will overreach him, the Supreme Court in Akaninwo v. Nsirim (2008) All FWLR (Pt. 410) 610 at page 659, paragraphs D–F, explained the meaning of “overreach” in the context of amendment of pleadings when it held thus:

 

“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, J.S.C.

 

This Court has carefully examined the nature of the amendment sought by the 1st Defendant/Applicant and observes that the essence of the proposed amendment is to furnish additional facts and further particulars in response to the Claimant’s Further Amended Statement of Facts. The proposed amendment does not introduce a new defence inconsistent with the earlier defence already before the Court, neither does it introduce a fresh cause of action.

 

More importantly, the Claimant would still retain the right to cross-examine the Defendant’s witness and, where necessary, seek appropriate leave of Court to reopen his case in response to any new matters arising from the amendment.

 

In the circumstance, this Court is unable to agree with the contention of the Claimant that the proposed amendment would occasion any irreparable prejudice or amount to overreaching.

 

With regards to the contention that the application is mala fide, the Court in MR. OGBO ONWODI & ORS. v. MR. SYLVESTER NDIFE & ORS. (2019) LPELR-48339(CA) held thus:

 

“The concept of mala fide has been defined to mean bad faith. Bad faith which is the opposite of good faith, and generally implies or involves actual or constructive fraud or a design to mislead or deceive another or neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive; while the term ‘bad faith’ implies the conscious doing of a wrong because of dishonest purpose or moral obliquity.”

Per UMAR, J.C.A. (Pp. 32–33, paras. E–B).

 

Where bad faith is alleged, as in the instant case, the burden lies on the party making the allegation to place sufficient materials before the Court establishing the alleged mala fide conduct. The Claimant is therefore expected to demonstrate how the application is capricious, dishonest, oppressive or intended to achieve an improper purpose.

 

In the instant case, apart from the bare allegation that the application was brought in bad faith, no credible material has been placed before this Court to establish that the application was actuated by any sinister motive. I must reiterate that mere lateness in bringing an application for amendment does not, without more, amount to proof of mala fide.

 

Consequently, this Court finds that the Claimant has failed to establish how the proposed amendment would overreach him or how the application was brought mala fide. The said contention is accordingly discountenanced.

 

In concluding on the foregoing findings, I take cognizance of the decision of the Court in SUNDAYWILLIE EDEMEKONG & ORS. v. BASSEY DAVID EKPO & ORS. (2012) LPELR-19705(CA), wherein the Court held as follows:

 

“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 overreach, the court would grant or permit such an amendment to correct same if such amendment will not cause injustice to the other party. See Bankole v. Dada (2003) 11 NWLR (Pt. 830) 174.”

Per NDUKWE-ANYANWU, J.C.A. (P.14, paras. C–F).

 

Applying the foregoing principles to the instant application, I have carefully considered the reliefs sought by the 1st Defendant/Applicant and I find that the proposed amendment is necessary for the effectual and complete determination of the real issues in controversy between the parties. I also find that the amendment sought is not intended to overreach the Claimant and would not occasion any injustice incapable of being remedied by the procedural safeguards available to the adverse party.

 

Accordingly, the sole issue for determination is resolved in favour of the 1st Defendant/Applicant to the effect that the Applicant has made out a case warranting the exercise of this Court’s discretion in granting the reliefs sought.

 

Consequently, leave is hereby granted to the 1st Defendant/Applicant to further amend its Statement of Defence in terms of the underlined portions contained in the Proposed Further Amended Statement of Defence and as reflected in the Schedule/Memorandum of Amendment marked as Exhibits “A” and “B”.

 

In the final analysis, I find the application of the 1st Defendant/Applicant to be meritorious and same is accordingly granted.

Ruling is accordingly entered.

I make no order as to costs.

 

………………………………………………………………………..

HON. JUSTICE Z. M. BASHIR, Ph.D

JUDGE