CORAM

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HONOURABLE JUSTICE O. Y. ANUWE

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PARTIES

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1. Ali Ochowechi David

APPELLANTS 

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1. Setraco Nigeria Ltd

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, PRACTICE AND PROCEDURE, AMENDMENT OF PLEADINGS, EXTENSION OF TIME, CONSEQUENTIAL AMENDMENT, PRELIMINARY OBJECTION, JURISDICTION, SUBJECT MATTER JURISDICTION, DEFAULT FEES, WORKPLACE NEGLIGENCE, EMPLOYMENT LAW, FAIR HEARING, ABUSE OF COURT PROCESS, INHERENT POWERS OF COURT

 

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SUMMARY OF FACTS

The Claimant, Ali Ochowechi David, instituted this suit on 30th December 2021 against three defendants: Setraco Nigeria Ltd. (his employer, as the 1st Defendant), National Hospital Abuja (2nd Defendant), and one Dr. Z.A. Isa (3rd Defendant). The principal claim as originally constituted was medical negligence against the 2nd and 3rd Defendants, with workplace negligence against the 1st Defendant as the employment-related aspect. Specifically, the claim against the 1st Defendant was that it breached its duty of care to the Claimant resulting in an injury to his eye — a workplace negligence claim.

On 3rd May 2023, the court delivered a ruling on a preliminary objection filed by the 2nd and 3rd Defendants and struck them out from the suit on the ground that the claims against them bordered on negligence in medical services rendered and not employment or labour matters within the subject matter jurisdiction of the National Industrial Court under Section 254C(1) of the Constitution. The court specifically held in that ruling that while it could entertain the suit of the Claimant against the 1st Defendant, the claims against the 2nd and 3rd Defendants were not within its jurisdiction. Reliefs a, c, and d, which were sought against the 2nd and 3rd Defendants, went with them, leaving only relief b sought against the 1st Defendant remaining in the suit.

Following the striking out, the Claimant continued with the case against the 1st Defendant and had partly testified as the sole witness in chief, adopting his witness statement on oath and tendering some documents, though he had not concluded his evidence in chief and had not been cross-examined. On 14th January 2025, the court directed the Claimant to file an amended Complaint and accompanying processes to reflect the subsisting parties, giving him 14 days. The Claimant did not comply within that period and instead filed a motion on 28th February 2025 — thirty days out of time — seeking extension of time, leave to amend the Complaint and statement of facts, and also to add new facts, new paragraphs, additional witnesses, and additional documents to his originating processes. The registry assessed default fees at N5,200 for 30 days’ default (calculated from 28th January 2025), which the Claimant paid.

The Defendant opposed the motion by counter affidavit and written address, and subsequently filed a Notice of Preliminary Objection (NPO) on 18th December 2025. The NPO contended: (1) the court lacked jurisdiction to continue with the suit as what remained was merely an ancillary matter after the principal claim (medical negligence) had been struck out; and (2) the Claimant’s motion was incompetent for failure to pay the correct default fees, which the Defendant calculated at N323,700 based on 667 days of default running from 3rd May 2023. The Defendant also argued in opposing the motion that the proposed amendment would create a different cause of action, was made mala fide, would reconstruct the case, and that the alleged mistake of counsel was intentional and fraudulent. Neither the Claimant nor his counsel appeared in court on the date of hearing.

The court dismissed the first ground of the NPO, holding that its ruling of 3rd May 2023 had expressly declared jurisdiction over the Claimant’s case against the 1st Defendant; that the workplace negligence claim against the 1st Defendant was a principal claim in its own right and not ancillary to the medical negligence claims; and that the Defendant had not appealed the 3rd May 2023 ruling. The second ground of the NPO was struck out as the issue of default fees was better resolved when determining the motion. On the motion, the court found the Claimant was in default for only 30 days (from 28th January 2025) and that the correct default fee of N5,200 had been paid. The proposed amendments were found to be related to the existing cause of action and not to change the nature or character of the suit. Since the Claimant had not closed his case nor had the Defendant opened its defence, no prejudice would be caused. Leave to amend was granted for the Complaint, statement of facts, list of witnesses, and list of documents, but refused for the witness statement on oath already adopted, the Claimant being directed to file a further witness statement on oath instead.

 

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HELD

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The NPO was partially dismissed and partially struck out. The first ground of the NPO was dismissed: the court’s ruling of 3rd May 2023 had expressly affirmed jurisdiction over the Claimant’s claim against the 1st Defendant; the workplace negligence claim was a principal claim independent of the struck-out medical negligence claims; and the Defendant had not challenged or appealed that declaration.

The second ground of the NPO was struck out to be considered on the motion. On the motion, the court held that the duty to amend arose on 14th January 2025 (not 3rd May 2023), the Claimant was out of time by only 30 days, the correct default fee of N5,200 had been paid, and the motion was competent. Leave was granted to extend time and to amend the Complaint, statement of facts, list of witnesses, and list of documents — the proposed amendments being connected to the existing cause of action and not changing its nature or character, with no prejudice to the Defendant who had not yet opened its defence. Leave to amend the witness statement on oath already adopted was refused; the Claimant was directed to file a further witness statement on oath instead. Costs were ordered to be borne by parties.

 

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ISSUES

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1. Whether the court retained jurisdiction to entertain the Claimant’s suit against the 1st Defendant following the striking out of the 2nd and 3rd Defendants, or whether the remaining claim was merely ancillary to the struck-out principal claim?

2. Whether the Claimant’s motion for extension of time and leave to amend was incompetent by reason of failure to pay the correct default fees under Order 57, Rules 5, 6, and 7 of the National Industrial Court (Civil Procedure) Rules 2017?

3. Whether the period of default for the purpose of calculating default fees ran from 3rd May 2023 (the date of the ruling striking out the 2nd and 3rd Defendants) or from 14th January 2025 (the date the court directed the amendment)?

4. Whether the court ought to exercise its discretion to grant leave to amend the originating processes and accompanying documents, having regard to the proposed amendments, the stage of proceedings, and the conditions for refusal under Order 26, Rule 2 of the NICN Rules 2017?

5. Whether the Claimant could be granted leave to amend a witness statement on oath already adopted as evidence on record?

 

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RATIONES DECIDENDI

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JURISDICTION OF NICN OVER WORKPLACE NEGLIGENCE – CLAIM AGAINST EMPLOYER FOR BREACH OF DUTY OF CARE IS A PRINCIPAL CLAIM WITHIN EXCLUSIVE SUBJECT MATTER JURISDICTION OF COURT – NOT ANCILLARY TO STRUCK-OUT MEDICAL NEGLIGENCE CLAIM

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“Contrary to the belief of the defendant, the claimant’s case against the defendant is not ancillary to his case against the parties who were struck out. The statement of facts of the claimant reveals his cause of action against the defendant, upon which he sought relief b, is workplace negligence, that is the defendant’s breach of its duty of care to the claimant, which resulted to the injury in the claimant’s eye. This is a principal claim different from his claims of medical negligence against the parties who were struck out. The aspect of the case of the claimant remaining against the defendant is exclusively within the subject matter jurisdiction of this Court. It implies that it is only this court, and no other court that can entertain the claim.” – Per Anuwe, J.

 

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SUBSISTING DECLARATION OF JURISDICTION – WHERE COURT HAS AFFIRMED ITS JURISDICTION AND DEFENDANT DID NOT APPEAL – DECLARATION REMAINS VALID AND BINDING

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“The above statement is a declaration by this court that it has jurisdiction to entertain the aspect of the claimant’s suit against the 1st defendant. The defendant did not appeal this holding neither is there any decision of a superior Court that has overturned that declaration. Accordingly, the declaration is subsisting and valid. The instant application of the defendant is seeking to make this court sit on appeal over what it has earlier decided and affirmed.” – Per Anuwe, J.

 

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DEFAULT FEES – PERIOD OF DEFAULT CALCULATED FROM DATE COURT ORDERED AMENDMENT NOT DATE OF STRIKING OUT – CLAIMANT WHO PAID CORRECTLY ASSESSED DEFAULT FEE CANNOT BE FAULTED

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“The duty on the claimant to amend his originating processes arose on 14th January 2025 and not on 3rd May 2023. Contrary to the contention of the defendant, the claimant was not in default to the number of days stated by the defendant. The claimant was out of time for only 30 days and he duly paid the correct default fees. In view of the foregoing, the defendant’s assertion that the claimant’s motion is not competent by reason of failure to pay appropriate default fees lacks merit.” – Per Anuwe, J.

 

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CONSEQUENTIAL AMENDMENT – COURT’S RULES REQUIRE CONSEQUENTIAL AMENDMENT ONLY WHERE DEFENDANT IS ADDED OR SUBSTITUTED – STRIKING OUT OF DEFENDANTS DOES NOT AUTOMATICALLY MANDATE CONSEQUENTIAL AMENDMENT BY RULES

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“Upon the Ruling of this Court on 3rd May 2023 striking out the 2nd and 3rd defendants from the suit, the court did not make an order for consequential amendment of the processes. This may have been in view of Order 13, Rule 16 of the Rules of this Court which require consequential amendment of the processes only in situations where a Defendant is added or substituted. It thus implies that the claimant is not mandated by the Rules to amend his originating processes on account of the striking out of some defendants from the suit.” – Per Anuwe, J.

 

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AMENDMENT OF PLEADINGS – COURTS HAVE INHERENT POWER TO ALLOW AMENDMENT AT ANY STAGE – POWER TO BE EXERCISED IN FAVOUR OF DOING JUSTICE

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“It is settled law that courts have the inherent powers to allow amendments to originating processes and pleadings of the parties at any stage of the proceedings… the exercise of the power to allow amendment is to be exercised in favour of doing justice in each particular case. See also BANK OF BARODA vs. IYALABANI COMPANY LTD (2002) FWLR (Pt. 124) 494 at 527; NIGERIAN DYNAMIC LTD vs. DUMBAI (2002) FWLR (Pt. 105) 823 at 831.” – Per Anuwe, J.

 

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CONDITIONS FOR REFUSAL OF AMENDMENT – AMENDMENT MAY BE REFUSED WHERE IT PRESENTS COMPLETELY DIFFERENT CASE CAUSES INJUSTICE BROUGHT MALA FIDE NECESSITATES FURTHER EVIDENCE OR AMOUNTS TO ABUSE OF PROCESS

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“In Order 26 Rule 2, an amendment may be refused where it would present a completely different case, or cause injustice to the other party or where the application for amendment is brought mala fide; or where the amendment will necessitate the hearing of further evidence; or where the amendment will not cure the defects in the procedure sought to be cured or where it is inconsistent and useless; or where the amendment will amount to over-reaching the other party or amount to an abuse of court process.” – Per Anuwe, J.

 

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AMENDMENT – PROPOSED AMENDMENTS RELATING TO AND CONNECTED WITH EXISTING CAUSE OF ACTION DO NOT CHANGE CAUSE OF ACTION OR NATURE OF SUIT

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“I observe that the proposed introductions to the originating processes are related and connected to the case of the claimant against the defendant in the extant originating processes. The original cause of action has not been discarded. The claimant merely sought additional claims and pleaded additional facts but all still relating to his cause of action against the defendant. In my view, the amendments sought to be made by the claimant will not change his cause of action nor the nature and character of the suit.” – Per Anuwe, J.

 

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AMENDMENT – NO PREJUDICE TO DEFENDANT WHERE CLAIMANT HAS NOT CLOSED CASE AND DEFENDANT HAS NOT OPENED DEFENCE – DEFENDANT WILL HAVE OPPORTUNITY TO RESPOND TO NEW FACTS

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“I do not see how the defendant will be overreached or prejudiced by the amendment. The defendant will have the opportunity to amend their statement of defence, if necessary, to respond to the new facts or defend the new claims of the claimant in the proposed amendment and to cross examine the claimant on the new facts.” – Per Anuwe, J.

 

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PURPOSE OF AMENDMENT – TO ENABLE COURT BE SEIZED OF WHOLE FACTS SO REAL ISSUES IN DISPUTE CAN BE CONCLUSIVELY DETERMINED AT ONCE

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“I am satisfied that the amendment sought to be made in the originating processes by the claimant is to enable the claimant put before this court the whole facts of his case. To allow the amendment will enable the court be seized of the whole facts of the case so that the real issues in dispute can be conclusively determined at once. In my view, the dictates of justice and fair hearing require that I exercise my discretion to allow the amendment.” – Per Anuwe, J.

 

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WITNESS STATEMENT ON OATH ALREADY ADOPTED – CANNOT BE AMENDED – PROPER PROCEDURE IS TO FILE FURTHER WITNESS STATEMENT ON OATH

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“The claimant has already adopted his witness statement on oath which accompanied the Complaint and it is now evidence on record. He cannot now seek to amend the said witness statement on oath already adopted. The proper step for the claimant is to file a further witness statement on oath, if he so desires, and not to amend the one already adopted.” – Per Anuwe, J.

 

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PRELIMINARY OBJECTION – GROUND CHALLENGING COMPETENCE OF MOTION BETTER RESOLVED ON THE MOTION ITSELF – GROUND OF NPO STRUCK OUT ACCORDINGLY

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“In my view, it will be more appropriate to consider the issue of payment or incomplete payment of default fee when determining the motion. Accordingly, the second ground of the NPO challenging the competence of the motion is struck out.” – Per Anuwe, J.

 

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SUBJECT MATTER JURISDICTION OF NICN – CLAIMS NOT EMPLOYMENT OR LABOUR MATTERS UNDER SECTION 254C(1) OF CONSTITUTION NOT WITHIN JURISDICTION – STRIKING OUT OF SUCH CLAIMS DOES NOT DEPRIVE COURT OF JURISDICTION OVER REMAINING EMPLOYMENT CLAIMS

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“In the ruling of this court on 3rd May 2023 delivered in an application brought by the 2nd and 3rd defendants, these defendants were struck out from the suit for the reason that the claims of the claimant against the 2nd and 3rd defendants are not within the subject matter jurisdiction of this court. The court did observe that the subject matter of the claimant’s case against the 2nd and 3rd defendants, including reliefs a, c and d sought against them, bordered on the subject of negligence in the medical services rendered for the claimant and not an employment or labour matter or any matter arising from the subject matters in section 254C[1] of the 1999 Constitution.” – Per Anuwe, J

 

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EXTENSION OF TIME – FAILURE TO PROVIDE SUFFICIENT REASONS FOR DELAY – CONSEQUENCE WHERE APPLICANT FAILS TO PLACE TANGIBLE MATERIAL IN SUPPORT OF APPLICATION

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“I am inclined to agree with the learned Respondent’s counsel that applicant, having failed to place before the Court any tangible material in support of their application, cannot be allowed to wriggle out of its responsibility and thereby deny the judgment creditor the benefit of enjoying the fruits of his judgment by a flimsy reason which is unsustainable.” – Per Hamma Akawu Barka, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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.Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 254C(1)

.National Industrial Court of Nigeria (Civil Procedure) Rules 2017, Order 5, Order 13 Rule 16, Order 26 Rules 1, 2 and 3, Order 38 Rule 3, Order 45 Rules 1 and 2, Order 57 Rules 4, 5, 6 and 7

.National Industrial Court Act 2006

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT

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COUNSEL

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• Hussain Abdulrahaman for the Claimant
• C. N. Nwapi for the Defendant