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: 22^ND MAY, 2025                                    SUIT NO: NICN/PHC/157/2022

BETWEEN

CAPTAIN DUMO MASSEY HARRY - - - - - - - - - - - CLAIMANT/RESPONDENT                  

 

 

AND

 

 

1. SG HOLDINGS (STALLIONAIRE NIGERIA

    LIMITED)                                                                                DEFENDANTS/APPLICANTS

 

2. REALFORCE SHIPPING COMPANY

    NIGERIA LIMITED     

 

 

REPRESENTATION:

O. E. Ijong for the Claimant/Respondent

G. O. Ibitola Esq. for the Defendants/Applicants

RULING

Introduction:

1.     This is a Motion on Notice brought pursuant to Orders 26 Rule 1 & Order 38 Rule 17(1), (2), (3) 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 of this Court granting leave to the Defendants to amend their Statement of Defence and other accompanying processes in the manner outlined in the proposed Amended Statement of Defence and accompanying processes marked Exhibit A.

ii. An Order of this Honourable Court granting leave to the Defendants to include Mr. Oluwatobi Akeredolu as an additional witness in this suit as well as file his witness Statement on Oath.

iii. An Order deeming the already filed and served Amended Statement of Defence and accompanying processes and the additional witness Statement on Oath of Mr. Oluwatobi Akeredolu as properly filed and served.

iv. An Omnibus prayers.

2.     It is supported by a 7 paragraphs Affidavit with an annexure marked as Exhibit A and also accompanied by a Written Address in accordance with the Rules of this Court. Wherein the Learned Counsel for the Applicants formulated a sole issue for determination to wit:

“Whether this application should be granted in the interest of justice?”

3.     It is submitted that this Court is clothed with the jurisdiction to grant this application as it seeks for the direction of the Court so as to present before the Court vital facts that will assist the Court in effectively determining this pending suit.

4.     Counsel argued that the Defendants have in their pleadings alleged that the Claimant acted dishonestly and the representative of Sahara Group of Companies led by Oluwatobi Akeredoru who is the Supervisor Trade and Vessel Operation Agharami Synergy (A member of Sahara Group) inspected the vessel which the Claimant claimed was empty, only to discover the Claimant laid about 79,000 litres of Cargos in two (2) of the tanks. Hence, there is the need for the Defendants to amend their Statement of Defence and other accompanying processes in order that their defence will align with their evidence before the Court, citing Order 26 Rule 1(1) a & b of the Rules of this Court, 2017; OKOLI VS AJOSE (1994) 8 NWLR (Pt. 362) 300; NJOKU VS EME (1973) 2 SC 293.

5.     It was further submitted that an amendment can be sought even after a case has been adjourned for judgment. Citing the cases of HONG VS FEDERAL MORTGAGE FINANCE LTD (2001) FWLR (Pt. 62) 1898; BANK OF BARODA VS IYALABANI (2002) 7 ALL NLR 325 at 342; Order 38 Rule 17 (1) (2).  He urged the Court to grant the application.

6.     In opposition to the application, the Claimant/Respondent filed a 4 paragraphs Counter Affidavit and accompanied by a Written Address in accordance with the Rules of this Court. A sole issue was distilled to wit:

“Whether this application should be granted in the purported interest of justice as prayed by the Applicants.”

7.     The Learned Counsel conceded straightaway that this Court has the discretion in a deserving case to grant an application for an amendment judiciously and judicially having regards to all the surrounding circumstances of the case, but the facts deposed to in the Counter Affidavit are there to hinder the Court from exercising its jurisdiction. Even the judicial authority of OKOLI VS AJOSE (Supra) cited by the Applicants is not relevant.

8.     It was argued that the supporting Affidavit did not place before the Court, how all the documents were not available to the Defendants from the Year 2022 till the 18^th day of October, 2024 i.e. after the matter has been fixed for definate hearing. Had it been the application is for mere inclusion of OLUWATOBI AKEREDOLU’S written Statement on Oath without the copious amendments with litany of documents one would not have been minded to oppose same. For that can be done at any time even after the conclusion of hearing of evidence.

9.     Counsel further submitted that the application is lacking in merit as the application have failed to place all the materials that will move the Court to exercise its wide and bounden discretion to attract favour in line with Sections 131, 132 and 133 of the Evidence Act, 2011. Hence, this application is bound to fail and has so failed and urged the Court to refuse same.

 

COURT'S DECISION

10.   I have considered the application, the arguments as well as the authorities cited by the counsel. The Court hereby adopts the twin issues duly raised by the parties. Other axillary issues may also be subsumed in the determination of this issue.

11.   Thus, it is imperative to state categorically clear that the crux of the application is not much in doubt as the Applicant sought for leave to include one Mr. Oluwatobi Akeredolu as additional witness in this suit which application, the Respondent vehemently opposed to.

12.   The question that called for determination at this juncture is whether or not an amendment is allowed in the circumstance of this case? Thus, the Defendant/Applicant in paragraph 3(a) of the Affidavit in support of the Motion on Notice at page 251 of the record of this Court state:

(a)   “That the Defendants in the course of this suit discovered they omitted to add a vital witness Mr. Oluwatobi Akeredolu who is the Supervisor Trade and Vessel Operation Agharami Synergy Limited (A member of Sahara Group of Companies) that led the inspection of the vessel the Claimant claimed to have discharged its content and discovered the Claimant hid about 79,000 Litres of Cargos in two (2) of the tanks.

(b)   That it is necessary for the Defendants to include and rely on Mr. Oluwatobi Akeredolu as one of their Witnesses in this suit while also filing his additional witness Statement on Oath.”

13.   Flowing from the above facts, the attempt by the Defendant/Applicant could be said to have been tapped from the erudite decision of Rhodes Vivour JSC as he then was in the case of MILITARY GOVERNOR OF LAGOS STATE & ORS. VS ADEYIGA & ORS. (2012) LPELR - 7836 (SC). Where it was held:

“In the absence of evidence to support the Statement of Defence, the pleadings of the Defendant were abandoned. The defence is deemed abandoned for at a time.”

See also: NDUGBO VS ALI (2023) LPELR - 60718 (CA).

14.   It is apparent based on the application that it is brought in order for the Court to do justice to the parties. If that is the case, then it suffice saying that the statutory authority upon which the application is predicated is relevant in the circumstance. Perhaps, Order 26(a) of the Rules of this Court, 2017 is to the effect that:

(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.

 

15.   Although, the Claimant/Respondent on his part argued that granting such an application will cause injustice to the Claimant and also overreach him. This could be seen with reference to Order 26 Rule 1(2) of the Rules of this Court which provides:

(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 fida;

(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.

 

16.   However, it is not sufficient for the Respondent to assert that the application will cause injustice to him or even over-reach him simpliciter without going further to buttress how could that be manifested. Whereas, he who asserts shall prove. See IMAN VS SHERIFF (2005) 4 NWLR (PT. 914) 80; ELIAS VS OMO - BARE (1982) 5 SC 28 & AGBI VS OGBEH (2006) 11 NWLR (PT. 990) 66 SC.

17.   It is sacrosanct to say that the Respondent owed a duty to counter seriatim the above paragraphs of the Affidavit cited in support of the Motion on Notice with substantial fact. Otherwise, these paragraphs are deemed correct. See BELLO VS A G LAGOS STATE (2007) 2 NWLR (PT. 1017) 155 CA; AG ONDO STATE VS AG EKITI STATE (2001)17 NWLR (PT. 743) 706 SC & EJEFOR VS OKEKE (2000) 7 NWLR (PT. 665) 363 CA.

18. In the absence of any substantial reason to refuse the application and in consideration of the material facts relied upon by the Defendant/Applicant, it is my considered opinion that same has merit. Consequently, it is hereby granted as prayed.

 

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Hon Justice M. A. Hamza

Judge