NICN - JUDGMENT
IN THE
NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE
LAGOS JUDICIAL DIVISON
HOLDEN
AT LAGOS
SUIT NO:
NICN/LA/411/2018
BEFORE
HIS LORDSHIP: HON. JUSTICE S. A. YELWA.....JUDGE
THIS MONDAY, 20TH DAY OF
JULY, 2026.
BETWEEN:
MATRIX SHIPPING LIMITED- ------------------- CLAIMANT/APPLICANT
AND
1.
SHONEYE
IFEKOREDE ABIONA
2.
ABUBAKAR
ISHAKA RABIU -----------DEFENDANTS/RESPONDENT
3.
UMOH
JOHN EFFIONG
4.
ULLAH
USAD
RULING
By
a motion on notice dated and filed 13/2/2026, the Applicant seeks the following
reliefs;
1.
AN
ORDER granting leave to the Claimant/Applicant to correct defects and errors in
Form 1 which is the General Form of Complaint in the manner shown in the
document titled “Proposed Further Amended General Form of Complaint” marked
EXHIBIT ML-1 in order to clarify issues and for the proper determination of the
real questions in controversy in this suit.
2.
AN
ORDER granting leave to the Claimant/Applicant to correct defects and errors in
the Statement of Facts in the manner shown in the document titled “Proposed
Further Amended Statement of Fact” marked EXHIBIT ML-2 in order to clarify
issues and for the proper determination of the real questions in controversy in
this suit.
3.
AN
ORDER granting leave to the Claimant/Applicant to correct defects and errors in
the Reply to the Defendant’s Statement of Defence and Counter-Claim in the
manner shown in the document titled “Proposed Further Amended Reply to Statement of Defence and
Counter-Claim” marked EXHIBIT ML-3 in order to clarify issues and for the
proper determination of the real questions in controversy in this suit.
4.
AN
ORDER granting leave to the Claimant/Applicant to file Further Additional
Witness Statement on Oath of Sheriff Lawal in the manner shown in the document
titled “Proposed Further Additional Witness Statement on Oath of Sheriff Lawal”
marked EXHIBIT ML-4 in order to clarify issues and for the proper determination
of the real questions in controversy in this suit.
5.
AN
ORDER of this Honourable Court deeming the said EXHIBIT ML-1, EXHIBIT ML-2,
EXHIBIT ML-3 and EXHIBIT ML-4 already filed and served on the
Defendant/Respondent as having been properly done in the circumstance.
6.
AND
FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the
circumstances of this case
GROUNDS
UPON WHICH THIS APPLICATION IS BROUGHT
a)
By the Order of this Honourable Court dated 14th January 2026,
the Claimant/Applicant was granted leave to change its counsel as prescribed by
the Rules of this Honourable Court.
b)
The new counsel on record for the
Claimant/Applicant having the reviewed the processes filed by the previous
counsel has considered it crucial to correct defects and errors in the
processes and also to clarify certain parts of the pleadings.
c)
The Claimant/Applicant is seeking the
prayers under Order 26 Rule 3 because the two-time amendments allowed under
Order 26 Rule 2 have been exhausted by the Claimant/Applicant’s previous
Counsel.
d)
It is in the interest of justice to
allow the curative, corrective and clarificatory amendments being sought by the
Claimant/Applicant.
e)
No prejudice will be occasioned to the
Defendants/Respondents if this application is granted.
The
motion is brought pursuant to Order 26 Rule 3 of the NICN (Civil Procedure)
Rules 2017, and under the inherent jurisdiction of this Honourable Court.
The
Claimant/Applicant’s motion on notice filed, is supported by a 13 paragraphs
affidavit, with four (4) exhibits attached and accompanied by a written
address.
In
response, the Defendants/Respondents filed a 27 paragraphs counter affidavit
deposed to by one Quincy Valentine on 26th February, 2026, a legal
practitioner in the law firm of the Respondents. Accompanying the Counter
Affidavit is a written address of counsel.
SUBMISSIONS
OF APPLICANT’S COUNSEL
Counsel
raised a sole issue for determination to wit;
“Whether
this Honourable Court has the power under Order 26 Rule 3 of its Rules to allow
the Claimant to amend the defects and errors in its processes, notwithstanding
the fact that he processes had previously been amended twice”.
Learned
counsel submitted that by Order 26 Rule 2 of the NICN Rules, it regulates
substantive amendments and imposes a numerical limitation, Order 26 Rule 3 of
the NICN Rules is corrective and discretionary in nature as it is designed to
ensure that justice is done on the merits and not defeated by procedural
imperfections.
Counsel
submitted that the amendment sought in the application does not seek to
introduce a new cause of action, substitute the CLAIMANTS case or fundamentally
alter the nature of the claims before the Court. Rather, the amendment sought
seeks to cure defects and errors discovered upon change of counsel so that the
real dispute between parties may be clearly presented and resolved.
Counsel
further submitted that it is settled law that the Courts, particularly the
National Industrial Court of Nigeria are enjoined to lean in favour of
amendments where they will aid the just determination of the matter and will
not occasion injustice to the adverse party. Counsel referred the Court to the
following cases; Akapo v. Hakeem-Habeeb (2013) 15 NWLR (pt. 1378) 398 (SC);
Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265 (SC).
Counsel
urged the Court to exercise its discretion judicially and judiciously in
granting the application in the interest of justice, and not refusing same on
technical grounds.
SUBMISSIONS
OF RESPONDENTS’ COUNSEL
Counsel
raised a sole issue for determination to wit;
“Whether
having regard to the inordinate delay of eight (8) years and the prejudice
occasioned to the Respondents, this Honourable Court ought to grant the
Applicant’s motion for amendment.”
Learned
counsel submitted that it is settled law that amendment of pleadings is
generally allowed to enable the Court to determine the real issues in
controversy between the parties. However, the discretion to grant amendment is
not automatic, and must be exercised judicially and judiciously. Counsel
referred the Court to the case of Ehidimhen v. Musa & Anor (2000)
LPELR-1051 (SC).
Counsel
further submitted that this suit was instituted in 2018, and that eight (8)
years have elapsed since the commencement of this suit. Pleadings have long
been closed, and parties have joined issues. The Applicant now seeks to amend
its processes at an extremely late stage. Counsel argued that the discovery of
the alleged error by the Applicant’s new counsel does not constitute a
sufficient ground for amendment after such inordinate delay.
Counsel
contended that the Applicant brought this Application after the Respondents had
filed their Statement of Defence, thereby exposing the weaknesses in the
Applicant’s case, now seeks to amend its Statement of Facts and Reply to
neutralize the defence, which is not a correction of error, but a strategic
reconstruction because the facts of the case was within the Applicant’s
knowledge from the commencement of the suit.
Counsel
submitted that Order 26 Rule 1(2) of the NICN Rules empowers this Honourable
Court to grant amendments at any stage where necessary for the determination of
the real questions in controversy. However, an amendment sought after 8 years
without new or supervening facts and solely on the change of counsel who now
seeks to correct perceived errors, cannot properly be described as necessary
within the contemplation of the NICN Rules. Rather, it seeks to reopen settled
pleadings and reconfigure the Applicant’s case strategy.
It
is the submission of counsel that the Court must guard against creating a
precedent that rewards procedural laxity and strategic ambush. If the mere
discovery of perceived errors by newly engaged counsel were accepted as
sufficient justification, there would be no end to amendments in protracted
matters. Each successive counsel could reformulate pleadings under the guise of
correcting omissions. Such a position would undermine procedural certainty,
encourage indolence, and foster tactical delay. Counsel cited the case of ANUDU
V. OLISAHI (2018) LPELR-51631(CA), relying on the Supreme Court in EZE
V. F.R.N., emphasized that where a party embarks on dilatory tactics, the
Court is entitled to stop such party in its tracks. A party who unduly delays
proceedings cannot complain where adverse decisions are taken against it. The
timing of this application-eight years after commencement-strongly suggests
tactical delay rather than necessity.
Furthermore,
counsel referred the Court to the case of KODE v. YUSSUF (2001) LPELR
1695(SC), the Supreme Court held that amendment will be refused where it is
intended to overreach or where it will occasion injustice not compensable by
costs. The amendment sought herein is clearly intended to overreach the
Respondents after their Defence has been filed.
Counsel
contended that in determining whether to grant this amendment, the Honourable
Court must also consider whether the application constitutes a tactical
manoeuvre intended to overreach the Respondents. Counsel relied on the case of
NIWA v. SPDC (NIG) LTD (2008) LPELR-1963(SC), the Supreme Court defined
“overreach” as conduct aimed at circumventing, outwitting, or getting better of
an opponent by cunning or artifice, describing such conduct as inequitable
because it is neither fair nor just.
Learned
counsel submitted that in the present case, the Applicant, having had sight of
the Respondents’ Statement of Defence and the issues thereby joined, now
seeks—after eight years-to materially amend its pleadings not on the basis of
newly discovered facts, but to recalibrate its case. This calculated
reconstruction of the pleadings after the defence has been exposed bears the
clear character of overreaching conduct and ought not to attract the favourable
exercise of this Court’s discretion.
It
is the contention of counsel that granting the amendment at this stage would
further compound procedural uncertainty and reinforce the tactical overreaching
conduct already demonstrated. It would compel the Respondents to revisit
settled pleadings and restructure their case, creating unnecessary litigation
disruption.
Counsel
submitted that the application also offends the overriding objective provisions
of the Rules of this Honourable Court. Order 1 Rule 4 mandates the Court to
apply and interpret the Rules with the objective of dealing with cases justly
and fairly, ensuring efficient and speedy dispensation of justice, and
discouraging delay. Granting an amendment after eight years, without newly
discovered facts and based solely on change of counsel, would directly
undermine these objectives and prolong the resolution of the matter
unnecessarily.
It
is the submission of counsel that in the circumstances, the present application
amounts to an abuse of the process of this Honourable Court. Counsel referred
the Court to the case of SUNSHINE PROPERTIES LTD v. MARCUS & ANOR (2022)
LPELR-5781 4(CA), abuse of court process occurs where the
judicial process is improperly used to interfere with the due administration of
justice, including instituting proceedings or invoking Court procedures to the
irritation, annoyance, or embarrassment of an opponent. The deliberate
attempt to reopen settled pleadings after eight years, and after full sight of
the Respondents’ Defence, constitutes an improper invocation of this Honourable
Court’s process for strategic advantage and falls squarely within the
definition of abuse.
Counsel
therefore urged the Court to refuse the application for amendment in its
entirety as being mala fide, prejudicial, dilatory, and constituting an abuse
of process, as to grant the amendment in these circumstances would be to
sanction inequitable litigation conduct.
DECISION
OF THE COURT
In
determining the motion before me, and having gone through the arguments of the
parties and their affidavits, I wish to raise the following issues:
(I)
“Whether the amendment sought for,
by the Claimant is not overreaching”
(ii)
“Whether the amendment does not amount
to an abuse of court process and the Claimant/applicant stopped (sic) from
bringing same before this Honourable court?”
In
determining the above, I wish to refer to order 26 rules 1, 2 and 3 of the
rules of this Hon court 2017 which state as follows;
1-
(1) “An amendment may be allowed where its purpose is to determine the
real question or issue between the parties and would-
(a)
secure substantial justice; or
(b)
settle the controversy between the 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 malafide;
(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 overreaching the other party or an abuse of court process.
2.
A party may at any time but more than twice with leave of court alter, amend or
modify the party’s originating and/ or other process.
3.The
court may at any time, and on such terms as to cost or otherwise as the court
or judge may think 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 raised by or arising
from the proceedings.”
It’s
trite law that in civil cases a party is entitled to amend his pleadings so as
to enable the trial court decide the real issue or issues in controversy
between the parties. See the case of Salami V Oke (1987) LPELR-2982(SC).
The
Supreme Court has also restated in the case of Adekeye V Akin-Olugbade(1987)
LPELR-104(SC) that an amendment can only be refused where it’s made
malafide or if the proposed amendment will cause unnecessary delay or will in
any way unfairly prejudice the opposite party, or is quite irrelevant or
useless.
It
was also held in Compagnie Generale de Geophysique Nig.Ltd V. Jumbo (2015)
LPELR-24685( SC) that the principle of law is well settled that the
purpose for allowing amendment is to enable the parties conduct their cases
properly by placing before the court all relevant facts necessary for the just
determination of disputes between them. But any application which seeks to
either overreach the other party or alter the nature of the applicant’s case
will not be allowed. It certainly remains the law that An amendment will hardly
be refused if it will enhance the justice of the case except however, it
appears in the opinion of the court that there is a fraudulent intention or a
hidden agenda which will generally work injustice against the opponent.
The
fact that the suit has been pending since 2018 or that there has been a change
of counsel is not, by itself, a sufficient ground to refuse an amendment
ordinarily. However, the discretion to grant an amendment is exercised
judicially and judiciously. Delay alone could not be fatal. Even where
proceedings have been pending for several years, an amendment may still be
granted if it merely clarifies existing pleadings and enables the Court to
determine the real issues between the parties.
In
the present case, the Applicant expressly stated that the amendments are
intended to correct defects and errors in the Complaint, Statement of Facts,
Reply, and to file a Further Additional Witness Statement following a change of
counsel. The Applicant also maintained that no new cause of action is
introduced and that the amendments are merely curative and clarificatory.
Although
the Respondents argued that the application comes after eight years, is
prompted by the filing of their Statement of Defence, amounts to overreaching, and
constitutes a tactical reconstruction of the Applicant’s case, these
allegations must be demonstrated by comparing the existing pleadings with the
proposed amended pleadings in contention.
The
Applicant’s explanation that the defects were discovered upon a change of
counsel is not in my mind, in itself, a legal ground for amendment. However,
neither is it a ground for refusing one. The critical question is Whether
the amendments are necessary for the just determination of the issues
and whether the Respondents can be adequately compensated by costs and afforded
an opportunity to amend their defence, if necessary.
The
essence of an amendment is to enable slips, blunders, errors and inadvertence
of counsel to be corrected; see the cases of Lasisi Kode v Yussuf [2001] 4
NWLR (Pt. 703) 392 at 412 and Adewole v Adesanye (No. 1) [2004] All FWLR (Pt.
231) 1387 at 1359.
Order
26 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules,
2017 is to the effect that a party may at any time but not more than twice with
leave of Court amend his processes. The Respondent Counsel has rightly argued
that the Claimant has thus, fully utilized the two chances given to him by the
Rules of this Honourable Court. From the foregoing, and taking a careful reading
of the motion and the entire suit which I am privileged to read over again this
motion for amendment is without merit and it is hereby refused. Accordingly, it
is dismissed.
Ruling
is entered accordingly. I make no order as to cost.
….………………………………………….
HON.
JUSTICE S. A. YELWA
(JUDGE)
APPEARANCES:
M.O OLAGUNJI ESQ -- FOR THE CLAIMANTS
GLORY BON-AMAKIRI (MS) ESQ -- FOR THE 1ST
DEFENDANT
WITH
QUINCY VALENTINE ESQ