IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. HAMZA

 

DATE: 23^RD APRIL, 2026                                 SUIT NO: NICN/PHC/97/2023

 

BETWEEN:

NIGERIA SOCIAL INSURANCE TRUST FUND

MANAGEMENT BOARD                                            - - - - - - - CLAIMANT

 

AND

 

CEDARWOOD SCHOOL LIMITED       - - - - - - - - - - - - DEFENDANT

 

 

REPRESENTATION:

Chika Uwakonye Esq. for the Claimant/Respondent.

N.T. Nweke (Mrs.) with C.S. Emedosi (Mrs.) for the Defendant/Applicant.

 

RULING

Introduction:

1.     This is a Motion on Notice dated the 24^th day of February, 2026 brought pursuant to Order 17 Rule 1 (1-8), Order 57 Rule 4(1)(2) and (5) of the National Industrial Court (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of this Court praying whereof for the following:

i.                   An Order extending time within which the Defendant/Applicant may file and serve Counter Affidavit and Written Address to Claimant's Amended Originating Summons, time allowed by the Rules having expired.

ii.        An Order of this Honourable Court extending time within which the Defendant/Applicant may seek and obtain leave of court to file and serve Further Counter Affidavit to Claimant's Further and Better Affidavit.

iii.      An Order of this Honourable Court granting leave to Defendant/Applicant to file and serve Further Counter Affidavit nunc pro tunc to Claimant's Further and Better Affidavit.

iv.      An Order extending the time within which the Defendant/Applicant may file and serve Further Counter Affidavit to Claimant's Further and Better Affidavit, time allowed by the Rules having expired.

v.         An Order deeming the said Defendant/Applicant's Counter Affidavit and Written Address filed out of time and Further Counter Affidavit already filed without leave of this Honourable Court first had and obtained and out of time as properly filed and served.

vi.      An omnibus prayer.

2.     The application is predicated upon the beneath grounds:

a.      The Claimant's Further and Better Affidavit introduced new and crucial facts that require a response.

b.     It is in the interest of justice for this Application to be granted as it ensures that the Court has the necessary facts to decide the matter on its merits.

3.      It is supported by a 7 paragraphs Affidavit and a Written Address dated 24th day of February, 2026.

            Submissions of the Defendant/Applicant

4.      The Learned Counsel to the Defendant/Applicant formulated is sole issue for determination to wit:

Whether the Defendant/Applicant has shown sufficient reason to warrant the grant of this Application.

 

5.     It is submitted that it is trite law that facts deposed to in affidavits can only be controverted by affidavits. Where facts in an affidavit deposed to by one party are not disputed by another party, the facts are deemed admitted by the said party. Citing the case of COSCHARIS TECH. V GEOFFREY & ANOR (2018) LPELR-49322 (CA). Therefore, the Court is vested with powers enabling it to exercise her discretion judiciously and judicially. While the Rules of the National Industrial Court do not expressly forbid the filing of a Further Counter Affidavit, it is the general practice to obtain the leave of court to file same.

6.     Counsel further submitted that the Courts have further held that a Further Counter Affidavit can only be countenanced if it seeks to provide answers to new facts introduced by the further and better affidavit, if it brings to the knowledge of the court facts which would give the court a better and complete picture of what the suit entails and if it is in the interest of justice to admit the further counter affidavit. Citing the case of ZENITH BANK PLC V. BANKOLANS INVESTMENTS LIMITED & ANOR (2011) JELR47564 (CA).

7.     In the instant case, it was argued that Paragraph 8 of Claimant's Further and Better Affidavit sub (b) to be precise states;

“That on 8^th February, 2024, final reconciliation was undertaken with representatives of both parties in attendance, wherein the Defendant's Trial Balance and General ledger was applied to ensure that all EXPENSE HEADS not forming part of remuneration to employees were totally removed."

This, according to him as can be seen from the Defendant's Further Counter Affidavit, is not true. Paragraph 8 of the said Further Counter Affidavit shows that as at the 8/2/2024, the documents listed by the Claimant could not have been in the possession of the Claimant because Defendant's reply of 25/03/2 024 to Claimant's letter of 20/03/24expressly offers to furnish Claimant with the same documents requested.

8.     It was also submitted that, failure to admit the affidavit would cause irreparable harm to the Defendant. The new facts are material to the case and cannot be properly placed before this Honourable Court in any other manner. They pray the Honourable Court, in the interest of justice, to exercise its discretion to allow all relevant information to be considered especially since the Claimant would not be significantly prejudiced. Furthermore, that granting the leave will not overreach or cause injustice to the Claimant.

9.     Learned Counsel posited that the affidavit was filed without leave due to an oversight on Counsel's part, and this motion seeks to correct this oversight to align with proper procedure. He relied on the discretion of the Honourable Court to grant leave retrospectively and deem the filed document properly filed and served, all the required fees having been paid. Referring to Orders 17 Rule 1 (1-8)Order 57 Rule 4 (1), (2), (4) & 5 of the NATIONAL INDUSTRIAL COURT(CIVIL PROCEDURE) RULES 2017 and Section 6 (6) (a)of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and also the case of IGAJA VS. EKPE (2004) ALL FWLR (PART 230) 1138 AT 1149 PARAS. C-E where the Court of Appeal stated thus:

“In an application to a Court for an extension of time to do an act, the application is implying that the applicants have failed at the appropriate time, to do what they were enjoined to do. It is therefore incumbent on the Applicants, to explain the delay or give good reasons for the delay".

And also the case of YOUNG SHALL GROW MOTORS LIMITED VS. AFOLABI (2002) FWLR (PT. 135) 785 AT 795 RATIO 8.

10.   It was argued also that the reasons for the Applicant's inability to file and serve his Counter Affidavit and Further Counter Affidavit within time are as stated in paragraphs 3 and 4of the Affidavit in support of this Application. Therefore, the sin or mistake of counsel should not be visited on the litigant. Citing OMENUWOMA VS OGBOGORO (2004) ALL FWLR (Pt. 220) 1259 at 1270, Paras. D-F.

11.   In response, the Claimant/Respondent filed a 5 paragraphs counter affidavit and accompanied by a written address in line with the Rules of this court dated the 3^rd of March, 2026. Wherein the Learned Counsel submitted a lone issue for determination to wit;

Whether the Defendant/Applicant has shown sufficient cause to warrant their opening of processes, and whether granting this application would not result in a miscarriage of justice against the Claimant.

12.  It was submitted that the Defendant's reliance on Order 17 Rules 1-8 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 to justify the filing of a "'Further Counter-Affidavit" is not only legally unfounded but fundamentally misleading. Therefore, the Defendant/ Applicant's prayer for leave to file a “Further Counter-Affidavit" at a stage where parties have joined issues is a procedural anomaly under the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and an attempt to overreach the Claimant, and urged the Court to discountenance same.

13.   It was further submitted that it is a settled principle of our jurisprudence that litigation must have an end. In the instant case, the Claimant had already filed its Further and Better Affidavit and a Reply on Points of Law.

It was held by the Supreme Court in UNITY BANK PLC VS BOUARI (2008) 7 NWLR (PT. 1086), that the filing of a Reply signifies that issues have been joined. Once issues are joined, the 'gate' of pleadings is locked. The Defendant cannot, after being served with the Claimant's superior arguments, seek to 'mend its hand' by filing a Further Counter-Affidavit. To allow this would be to grant the Defendant a 'third bite at the cherry' a practice condemned in GWANI V. EBULE (1990) 5 NWLR (Pt. 149).

14.   According to him, if this Honourable Court permits the Defendant to reopen facts at this stage, it might just be inviting a cycle of 'Further and Better' processes that would delay the resolution of this matter indefinitely, thereby defeating the very essence of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. Whereas, the general rule is that the practice of a Defendant filling a Further - Better Counter Affidavit to the Claimant's reply on point of law is not allowed, as this practice is not known to law and the Rules. Citing the case of ATTORNEY-GENERALOF IMO STATE & ANOR V. IMO RUBBER ESTATES LTD. & ORS (2019) LPELR-47579 (CA): Where;

“The Court of Appeal held that in originating summons proceedings, the defendant is limited to filing a counter-affidavit to dispute factual assertions. The court noted that additional processes like counter-claims or further counters are "'strange" to the procedure, as they imply disputed facts better suited to writ of summons. This reaffirms the restricted affidavit exchange to maintain the non-contentious essence of originating summons.”

Also, in HOPE BEALEEMABARI ALAGARA V. THE STATE SECURITY SERVICE & 4 ORS (UNREPORTED, SUIT NO. NICN/ABJ/165/2017, (delivered 2018): The National Industrial Court ruled that there is no process known to law as a "further counter-affidavit in opposition to a further affidavit" or a "written address in support of Further Counter-Affidavit in response to a Reply on Points of Law." Relying on the Court's Civil Procedure Rules (similar to general High Court Rules), it struck out such filings, stating they are not provided for and violate procedural legality.

15.  It was contended that the Defendant has argued in paragraph 3.4 - 3.6 of its written address in support of motion on notice that the Defendant's Further Counter Affidavit is aimed at dealing with the new facts introduced by the Claimant's Further and Better Affidavit. The Defendant has also cited judicial authorities in paragraphs 3.1 and 3.2 of their argument to justify its seeking to embark on a voyage that is misconceived, prejudicial, not permitted by the Rules, and that amounts to an abuse of Court process.

The question is, "is the Defendant genuinely seeking to respond to new facts that have emerged from the Claimant's Further and Better Affidavit as alleged or is it seeking for a platform to emphasize and repair its defence in a manner not contemplated by the rules of this Honourable Court?

16.   It was further submitted that the Defendant's claim at Ground (a) of its Motion on Notice that the Claimant's "Further and Better Affidavit" introduced new and Crucial facts requiring the Defendant's response is unsustainable and cannot enjoy the covering of the exception to the General Rule provided by the Appeal Court in ZENITH BANK PLC V. BANKOLANS INVESTMENTS LIMITED & ANOR which the Counsel to the Defendant is seeking to take refuge under. This is because, the Claimant's Further and Better Affidavit was a direct response in answer to paragraph 16 of the Defendant's Counter Affidavit to show that there were in fact reconciliation attempts which culminated in a final reconciliation exercise to which Exhibit NSITF 8was a product of. The Defendant's attempt to respond now is an afterthought aimed at repairing its defence.

17.   Counsel also submitted that the right to fair hearing is a two-way street. By seeking to introduce to file a further Counter Affidavit after the Claimant has closed its arguments, the Defendant is attempting to have the "last word" on facts that have always been available to them. Citing the case of ADIGUN V. ATTORNEY-GENERAL, OYO STATE (1987) 1 NWLR (PT. 53) 678 where the Supreme Court established that Fair hearing must be accorded to all parties in a case. Therefore, by allowing the Defendant to file a new process after the Claimant has "closed" its side with a Reply, the Court would be tilting the scales unfairly against the Claimant who is automatically shut out of response.

COURT'S DECISION

18.   It is imperative to say that in the course of the proceedings, the Claimant filed a Further and Better Affidavit to support its claim which specifically alleged that a final reconciliation meeting was conducted on the 8^th day of February, 2024 with representatives of both parties present. Wherein the Defendant's Trial Balance and General Ledger were utilized to identify and remove expense heads that did not constitute employee remuneration. See paragraph 8(b) of the further and better Affidavit.

19.   On its part, the Defendant disputed the factual accuracy of the Claimant account of the 8^th February, 2024, reconciliation meeting and seeks to provide a contrary version of events. Pursuant to which the Defendant filed an application seeking leave of the Court to file a further Counter Affidavit and an extension of time to regularize the process.

20.   Flowing from the above foregoing in the Defendant claims that the Further Counter Affidavit is necessary to respond to new facts introduced by the Claimant, while the Claimant maintains that issues have already been joined and the application is an attempt to overreach. Consequently therefore, this Court has distilled the following issues for determination as they are the thrust of action. Other ancillary issues may be subsumed in the determination of this issues to wit:

i.    Whether the Defendant/Applicant has shown sufficient cause to warrant an extension of time to file its processes.

ii.   Whether the Defendant is entitled to leave to file a further counter affidavit after the issues have been joined.

21.   It is within the contemplation of the Defendant/Applicant that facts deposed to in an affidavit can only be controverted by Affidavit; otherwise, they are deemed admitted. Citing COSCHARIS TECH. VS GEOFFREY & ANOR (Supra). Moreso, this Court has the discretionary power to grant leave for a further counter affidavit to ensure a complete picture of the suit and serve the interest of justice. This is necessary to respond to new facts introduced in paragraph 8(b) of the Claimant further and better affidavit regarding a purported reconciliation. Similarly, failure to admit the affidavit would cause irreparable harm to the Defendant as material facts would be excluded.

22.   On its part of the Claimant argued that the Defendant's reliance on Order 17 Rules 1 - 8 of the NICN Rules, 2017 is misleading and does not provide a legal basis for filing a Further Counter Affidavit at this stage of the proceeding which is considered as a technical manure. Moreso, granting this application will result in a miscarriage of justice against the Claimant and would lead to an indefinite cycle of Further and Better Affidavit processes and unending pleadings.

23.   Meanwhile, the basic attributes of fair hearing include: (a) that the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case (b) that the Court or tribunal gives equal treatment, opportunity and consideration to all concerned (c) that the proceedings be heard in public and all concerned shall be informed of and have access in such place of public hearing (d) that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have be done. See ALHAJI BUKAR GOMMI VS BABAGANA MIDU BUTU & ORS (2022) LPELR - 56911 (CA); TASANIOLA (NIG) LTD & ANOR VS DUBRIC OIL CO. LTD (2022) LPELR - 88741 (CA).

24.   Based on an in-depth analysis of deposition of the affidavit in support of the application as well as a submission thereto, this Court finds that the Defendant/Applicant has demonstrated sufficient cause to warrant an extension of time to file its processes. The delay in filing was attributed to the administrative oversight by Counsel which has not been controverted by the Claimant. Whereas, under our jurisprudence, the mistake of a Counsel is generally not visited upon the litigant where the interest of justice dictates otherwise as rightly argued by the applicant. See AHMAD NUHU SANI VS ISIYAKA RABI'U & SONS LTD & ANOR (2022) LPELR - 57479 (CA).

25.   Given that the matter involves complex issues of employee remuneration and statutory contributions, it is imperative that the case be decided on its merit rather than on procedural technicalities. See BELLO VS AG OYO STATE (1986) 12 SCPI; OGUNNUBI VS KOSOKO (1991) 8 NWLR (PT. 210) P 511; FAST APPROACH CONSTRUCTION LTD VS GTB & ORS (2021) LPELR - 54615 (CA).

26.   This Court exercises its discretion to grant the extension of time and regularize the Defendant's processes, as the Claimant has not demonstrated that this brief delay has caused any in irreparable prejudice that cannot be adequately compensated by an award of costs. This decision ensures that both parties have an equal opportunity to present their case, fulfilling the Court's primary objective of according substantial justice between the parties. So I hold.

27.   On Issue No. 2, the Claimant has shown so much resentment and argued that there is no process known to law or National Industrial Court of Nigeria, Rules as a Further Counter Affidavit in opposition to a Further Affidavit or a Written Address in support of the Further Counter Affidavit in response to a Reply on Points of Law. Citing HOPE BEALEEMABARI ALAGARQ VS THE STATE SECURITY SERVICE (Supra). Secondly, even the National Industrial Court of Nigeria has previously struck out such filing for violating procedural legality. Thirdly the Court of Appeal in AG IMO STATE VS IMO RUBBER ESTATES LTD (Supra) held that additional processes like Further Counters are strange to Originating Summons procedures. Fourthly, that once a reply is filed, issues are joined and the gate of pleadings is locked.

28.   The Defendant/Applicant maintained that it possesses evidence i.e. a Letter dated 25/03/2024 that contradicts the Claimant’s claim about timing of document possession and reconciliation. See paragraph 8(b). Thus, filing a Further Counter Affidavit is to ensure a complete picture of the suit and serve the interest of justice.

30.   There is clearly no provision therein for the filing and use of a Further Counter Affidavit. However, the reverse would be the case where for example the Applicant raises some new issues in his Further Affidavit, which really ought not to be the case, the Respondent can in the circumstances file a Further Counter Affidavit to equally deal with the new issue so raised in the Applicant’s Further Affidavit. See UTC NIG. LTD VS PAMOTEI (1989) 2 NWLR (PT. 103) P 244.

31.   It is trite that the Rules did not expressly provide for the filing of Further Counter Affidavit. However, the same Rules did not also state that further counter Affidavit cannot be filed in every circumstance. While I agree with the Respondent's Counsel that Court should not encourage filing of processes endlessly. I am however of the view that every case has to be considered according to its given set of facts and circumstances. See ADAMU VS AKUKALIA (2005) 11 NWLR (PT. 936) P. 203; ARIYO BS JULIUS BERGER NIG LTD (2016) 11 ACN (PT. 1); TER ZINGWE SAMSON ABEH VS THE INSPECTOR GENERAL OF POLICE & ORS (2021) LPELR - 54856 (CA).

32.   Consequently, the Court resolves that the Defendant is entitled to leave to file a Further Counter Affidavit. This is based on the findings that the Claimant's further and better Affidavit introduced specific substantive new facts regarding a reconciliation meeting held on 8^th February, 2024 and the specific utilization of the Defendant's Trial Balance and General Ledger. These details were not part of the initial claim and could not have been addressed by the Defendant in its original Counter Affidavit. Therefore, to deny the Defendant the opportunity to respond to this specific allegation could result in a one-sided factual record, potentially leading to a miscarriage of justice.

33.   Similarly, the Court holds that the interest of a fair trial outweighs the strict application of the joinder of issues note in this instance. Hence, the Defendant is permitted to file the Further Counter Affidavit, strictly limited to addressing the new facts raised in paragraph 8(b) of the Claimant's Further and Better Affidavit.  So I hold.

 

 

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Hon. Justice M. A Hamza

Judge