IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO: NICN/LA/36/2025

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

THIS MONDAY 20TH DAY OF JULY, 2026

 

BETWEEN:

 

MR. IKECHUKWU AZUDI        --         --         --         CLAIMANT/RESPONDENT

AND

SEPLAT ENERGY PLC    --         --         --         --         DEFENDANT/APPLICANT

 

RULING

When this matter came up for trial on 18/5/2026, counsel for the Defendant Mr. Ubonna Chukwumerije drew the attention of the court to this pending Motion on Notice filed on 11/5/2026 which motion is brought under order 5 Rule 3 of the Rules of this Honourable Court 2017 and under the inherent jurisdiction of this court. The motion prays for:

1.     An order of departure from the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, and granting leave to the defendant to file and serve a reply to Defence to counter-claim and accompanying processes in the instant suit in the interest of justice and fair hearing.

2.     An order deeming the defendant’s Reply to the Defendant to Counter-Claim and other accompanying processes already filed and served, as properly filed and served on the Claimant/Respondent.

3.     And the omnibus relief.

 

The motion is supported by 5 paragraphs affidavit of David Abutu a Litigation Executive in the Law Firm of the counsel for the defendant. A written address of counsel is also accompanying the Motion.

In moving the motion, counsel adopted and relied on the facts in the affidavit in support and his written submissions and urged the court to grant the motion.

 

There is no counter affidavit filed and, in that regard, counsel for the Claimant/Respondent indicated to the court that ordinarily he would not oppose the motion but submitted that the court is bound by its records of 2/3/2026 during the proceedings of the said date the defendant moved an application dated 12/2/2026 thereby seeking for leave to file the same reply to the defence to counter-claim but this Honourable court upon hearing, however dismissed the said motion. Claimant’s counsel remarked that the present motion looks like an appeal against the said dismissed motion.

 

It is at that point, that counsel for the defendant submitted that the instant motion is different from the one heard and dismissed and he urged the court to hear and grant the instant motion.

 

I have carefully read through the motion paper alongside the accompanying written address of counsel. I have equally read over again the motion filed on 12/2/2026 decided upon by this court on 2/3/2026 and listened to the applicant’s counsel. It is worthy of note that this court had earlier decided similar fate of an application in NICN/LA/244/2023 Between: POWERGEN RENEWABLE ENERGY NIG. LTD VS OLUWATONILOBA OLUWABUSAYO FALADE on 12/3/2024 where an application seeking for an order striking out or discountenancing with the reply to defence to counter claim was heard and granted. The scope of the said motion was to the effect that this Honourable Court should strike out the Reply to the Defence to Counter-claim filed by the Defendant/Counter Claimant in the said suit on the ground that the filing was not provided for under the Rules of this court 2017. This informed the basis of this court maintaining the same position when it dealt with the motion filed by the present defendant/applicant on 12/2/2026 and was decided on 2/3/2026 in this instant suit.

Claimant’s counsel maintained in his response to the present motion that he does not want to oppose the motion, but that this court should be reminded of its own orders 12/2/2026 ruled upon on 2/3/2026 against which there is no appeal and by section 254 (c) of the CFRN 1999 (as amended), the defendant would required leave of the Court of Appeal to appeal which is not the case herein.

 

I have looked very closely at the former application dealt with and related same with the instant one. They are distinguishable in the sense that the present motion is such that seeks for an order of departure from the Rules of this court by virtue of Order 5 Rule 5 of the said Rules of procedure, so that the defendant could be allowed to file and serve a Reply to Defence to Counter-Claim and deeming same properly filed and served on the Claimant/Respondent.

 

Generally, this court can depart from its rules of procedure under Order 5 Rules 3,4, & 5. It is not in doubt that the court is empowered to direct or condone a departure from its rules in the overall interest of justice, fairness and equity since the court is established to in all cases before it, prioritize substantial justice over technicalities. Order 5 Rule 5 carefully read, provides an Omnibus procedure stating that:

“Where no provision is made under the Rules or where provisions are inadequate, the court may adopt whatever procedure it views as necessary to do substantial justice between the parties.”

 

It should not be forgotten that the power such as this, given to the court is very much limited to procedural and administrative matters but does not extent to cover granting orders or reliefs that can violate substantive statutory law, such as the NIC Act, 2006 or the provisions of the 1999 CFRN (as amended)

 

Having read through the affidavit in support of the motion, and in particular paragraphs 4 (c) (d) (e) (f) and (g) added with the facts in 4 (h) and (i), I am of the firm view that the defendant can obtain the order it is seeking for.

By order 30 Rules 19 (2) & (3) of the Rules of this court, it is not in doubt that pleadings are generally deemed closed 7 days after service of a defence to counter claim unless this court orders a subsequent pleading between the parties. This is because a reply to a defence to counterclaim is amounting to a pleading subsequent to a reply. The Rules of this court does not automatically provide a time line for it.

It is therefore necessary to file this kind of application because the defendant must formally apply and obtain leave or an order of departure from the rules.

 

In the present application, if I may borrow, from the provisions of Order 9 Rule 37 of the Ondo State High Court (Civil Procedure) Rules, 2019 which provides: -

“Pleadings shall be deemed closed upon filing of Reply to Statement of Defence OR Reply to the Defence to Counter-Claim as the case may be, or after expiration of the time limited for filing either of such”

 

The two previous refusal of applications by this court to file Reply to the Defence to Counter- Claim arose purely where there was no application for departure from the operative words of the Rules of this court since by Orders 30 – 33 of the Rules, there is no provision given for filing Reply to Defence to Counter-Claim.

 

Filing this application for departure, if granted would certainly render the process competent. But where the leave sought is peradventure not granted, the reply can be struck out or even dismissed for being abuse of court process.

 

The affidavit in support contains facts in paragraph 4 (d) & (e) which I find compelling that this motion should be granted. That is to say, I am of the view that this court can grant the application since it is plain that the claimant has introduced grave, serious, hostile and contentious facts that touch on the root of the case, and the merits of the defendant’s defence/counter-claim. That goes to show that the claimant had introduced entirely new facts or issue in his defence to counter claim. In any event if it is clear that the Reply sought to be filed is one that is a mere repetition of the counter-claim, the court will deny the application in order to stop unnecessary dragging the suit. After all, the claimant does not even oppose the motion, per se.

In dealing with the present motion, I am guided by the decisions in ANIE V UZORKA (1993)8 NWLR PT. 309 P1. AKANDEV JEGEDE (2022)14 NWLR PT. 1849 P. 125 AND JOHN V STATE (2019)9 NWLR PT. 1676 P. 160 where in all these cases cited, the courts reiterated that where to refuse the application will do great injustice than doing justice, the court would certainly grant.

 

From the foregoing, I find this motion meritorious and distinguishable from the earlier ones refused by this court. In this regard, I grant the motion as prayed and all necessary fees must be properly assessed and paid.

 

 

Ruling is accordingly, entered.

 

 

_________________________

HON. JUSTICE S.A. YELWA

(JUDGE)

APPEARANCES:

I.O. ASAMUDO ESQ                                   --         FOR THE CLAIMANT

OLARENWAJU HASSAN ESQ                 --         FOR THE DEFENDANT