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COURT’S RULING On July 21, 2015 the claimant filed this complaint against the defendant seeking for the following reliefs: 1. A Declaration that the Claimant is entitled to be paid all her outstanding salaries, benefits, entitlements, emoluments, allowances or howsoever called being unjustly withheld and deprived her by the Defendant upon her exist from the company since February, 2015. 2. A Declaration that the Claimant is entitled to be paid the sum of =N=7,109,792.00(Seven Million One Hundred and Nine Thousand Seven Hundred and Ninety Two Naira) being the gratuity payable to her for 20 years of service to the Defendant using the calculations in the schedule to the Pension Reform Act, 2014 forthwith. 3. An Order compelling the Defendant to pay to the Claimant the sum of =N=7,109,792.00(Seven Million One Hundred and Nine Thousand Seven Hundred and Ninety Two Naira) being the gratuity payable to her for 20 years of service to the Defendant using the Calculations in the schedule to the Pension Reform Act, 2014 forthwith. 4. An Order compelling the Defendant to pay to the Claimant her due salary for the month of January 2015 in the sum of =N=444,362.00 (Four Hundred and Forty Four Thousand, Three Hundred and Sixty Two Naira only) being her unpaid salary for January 2015 forthwith. 5. An Order compelling the Defendant to pay to the Claimant her 13th Month pay for 2014 in the sum of =N=333,271.50 (Three Hundred and Thirty Three Thousand, Two Hundred and Seventy One Naira and Fifty Kobo). 6. An Order compelling the Defendant to pay to the Claimant her salary for the month February, 2015 prorated till 9th February, 2015 in the sum of =N=142,830.64 (One Hundred and Forty Two Thousand, Eight Hundred and Thirty Naira and Sixty Four Kobo) forthwith. 7. A Order compelling the Defendant to pay the Claimant the sum of =N=1,412,436.36 (One Million, Four Hundred and Twelve Thousand, Four Hundred and Thirty Six Naira Thirty Six Kobo) being the Claimant’s unpaid salary for the months of March and April 2015; the balance of her February 2015 salary and prorated for May 2015 salary. 8. An Order compelling the Defendant to pay the Claimant her due leave allowances for 2014 prorated by the Defendants to 8 months in the sum of =N=148,429.08 (One Hundred and Forty Eight Thousand, Four Hundred and Twenty Nine Naira, Eight Kobo) forthwith. 9. An Order compelling the Defendant to remit to the Claimant’s Retirement Savings Account with IBTC Pension Managers Limited all outstanding pension contributions duly deducted from the Claimant’s salaries together with the statutory contributions by the Defendant toward the fund in the sum of =N=1,963,635.59 (One Million Nine Hundred and Sixty Three Thousand, Six Hundred and Thirty Five Naira, Fifty Nine Kobo) and to make proof of its compliance available to the Claimant forthwith. 10. The Sum of =N=10million as damages for the loss of job opportunity caused the Claimant by the Defendant in failing to accept the Claimant’s resignation timeously and or deal with dispatch all issues affecting the Claimant’s resignation as well as for emotional shock and trauma, damage to her character, career and person. 11. Compelling the Defendant to remit to the Ogun State Government Inland Revenue Services all outstanding (PAYE) taxes duly deducted from the Claimant’s income but unremitted and to make proof of its compliance available to the Claimant forthwith 12. The sum of =N=600,000.00 (Six Hundred Thousand Naira) only as Solicitors’ fees. 13. Cost of expenses incidental to these proceedings. 14. AND for such Order and other Orders as the Honourable Court may deem fit to make in the circumstance. Other processes were filed along with the complaint by the claimant in line with the Rules of this Court. On receipt of the claimant’s processes, the defendant entered appearance through its counsel and filed its defence processes in compliance with the Rules of the Court as well. Trial of this case was concluded on June 6, 2017 after the claimant’s testimony because the defendant’s counsel informed the Court that they would not be calling any witness. Consequently, the Court directed counsel to the parties to file their final written addresses in line with the Rules of the Court and then adjourned the case to November 8, 2017 for adoption of final written addresses of counsel. However, on July 20, 2017 counsel to the claimant filed a motion on notice, praying for an order joining ‘BNSL Foods, Feeds & Veterinary Pharmaceuticals Limited’ as the 2nd Defendant in these proceedings. The grounds upon which the orders are being sought are as follows: a. The Defendant/Respondent Company has been sold to the party sought to be joined on or before the 1st day of June, 2017. b. To ensure that all parties affected by the Claims of the Claimant before this Honourable Court are properly before the Court. The motion is supported by a 7 paragraphed affidavit and a written address in which the counsel raised an issue for the Court’s determination thus: Whether the Claimant’s/Applicant’s prayers in this application ought to be granted in all the circumstances of the case. Arguing the said issue, counsel submitted that the party sought-to-be-joined has bought over the Defendant on record and that it follows that any decision reached by this Court in these proceedings must of necessity affect the party sought to be joined who is now the owner or alter ego of the Defendant on record. Counsel referred the Court to the cases of Florence Carrena & Anor. v. Chief Akinlase & Ors [2008] 14 NWLR (Pt. 1107) page 262 at page 280-281 paragraphs G-A; King Remy Igbokwe v. Arch David Kehinde & Anor [2008] 2 NWLR (Pt. 1O72) page 441 at page 451 paras G-H and Prophetess Oluwaniyi v. Chief Oluwafemi Adewumi [2008] 13 NWLR (Pt. 1104) page 387 at 405-406 paragraphs G-B. She urged the Court to grant the claimant’s prayer for joinder. Opposing the application, the counsel to the party-sought-to-be-joined filed a 10 paragraphed counter-affidavit and a written address. He framed an issue for determination this way: Whether there exist in this suit, questions/issues which cannot be resolved effectively and efficiently without the addition of the Party-Sought-to-be-Joined. Arguing this issue, counsel maintained that the Party-Sought-to-be-Joined was neither the buyer of the assets and liabilities of the Defendant nor was it true that the Defendant transformed into the Party-Sought-to-be-Joined. That based on the averments in paragraphs 17, 18 and 19 of the Defendant’s Statement of Defence, which effectively deny the Claimant’s claim in the substantive suit, he submitted that the Claimant’s claim before the Court does not qualify as part of the liability assumed by FS CAPITAL LTD unless and until this Court unlikely finds in favour of the Claimant. That it is far-fetched for the Claimant to label any liability or right to relief against the Party-Sought-to-be-Joined when no such liability could presently subsist against the actual buyer of the Defendant’s assets and liabilities and that there is no basis for the addition of the Party-Sought-to-be-Joined as a party to this case under the present circumstances. Counsel referred the Court to the cases of Babayegu v Ashar [1998] 9 NWLR (Pt. 567) 546; Regd. Trustees, N.A.C.H.P.N. v. M.H.W.U.N [2008] All FWLR (Pt. 412) 1013 at 1027, P. 1073, paras. G - H (SC); Ogolo v. Fubura [2003] 11 NWLR (Pt.831)231 and Aga & Ors and Onah & Ors, [2012] LPELR-22103(CA). He urged the Court to refuse the application. Counsel to the claimant filed a reply on point of law and submitted that the facts stated by the party sought to be joined in the affidavit of Jadesola Balogun are entirely different from the facts relied on in the written address attached to the said counter-affidavit. She went on that there is no mention of FS Capital Limited in any of the exhibits sought to be relied upon by the party sought to be joined yet the party sought to be joined has argued extensively and relied on a purported transaction between the said FS Capital Limited and the Defendant herein. Counsel referred to the RTNACHPN v. NKHWUN [2008] 2 NWLR (Pt. 1072) Page 575 at Page 642 Paras G-H, and further submitted that the party sought to be joined ought to be joined in these proceedings to avoid a multiplicity and duplicity of suits in respect of the subject matter of these proceedings. COURT’S DECISION I have gone through this application, the affidavit in its support together with the written arguments for this application. I have also read through the counter affidavit together with the written argument of counsel to the part-being-sought-to-be joined as a defendant against this application. From all of these, I am of the considered view that the only issue to determine is: Whether or not to join ‘BNSL Foods, Feeds & Veterinary Pharmaceuticals Limited’ as a defendant in this case. The Law is that, granting or refusal of joinder of party to an action in Court is at the discretion of the Court, which must be exercised judicially and judiciously. See CM/Trading Servo Ltd v. Yuriy [1998] 11 NWLR (Pt. 573) 284. The said joinder will be necessary; if the cause or matter is liable to be defeated by the non-joinder of the third party as a defendant, if the third party is a person who ought to have been joined as a defendant so that he may be bound by the result of the trial or that his presence before the court as a defendant is required in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause; see the Supreme Court’s decision Per Peter-Odili, JSC’s holding at page 328 paras C-F in Azubuike v. PDP [2014] 7 NWLR (Pt. 1406) SC 292 and the case of Ononye v. Odita [2008] All FWLR (Pt. 409) 539 at 542 p. 548, paras E - G; P. In paragraphs 3 and 4 of the affidavit in support of the instant application, the claimant informed the deponent that shortly before the adoption counsel’s final written addresses on the substantive case, she noticed that the sign-board on the premises of the Defendant on record has changed from that of the defendant’s name, ‘Bio-organics Nutrient Systems Limited’ to “BNSL Foods, Feeds & Veterinary Pharmaceuticals Limited” and that upon further inquiries, she learnt that the Defendant Company has been sold to the party sought to be joined. The claimant presented “Exhibit A” to buttress her point. This exhibit is a letter of termination of employment of one Emmanuel Iyiola Ogunsola, it is dated 31st May, 2017 signed by one Westerhoff for the defendant. Paragraphs 1 & 2 of the letter state: In view of the sale by the Receiver Manager of all assets of Bio-Organics Nutrient Systems Limited to a third party, we regret to announce the closure of the company by June 3rd, 2017 Consequently, your employment is hereby terminated with immediate effect and you will receive one month’s salary in lieu of notice on or before 30th June, 2017. Please, see page 300 of the record for a copy of the Exhibit A. Based on the above information, counsel to the claimant filed this application praying the Court to join the name of the new company found on the premises of the defendant as a co-defendant in this case. In paragraphs 3, 4 and 5 on the counter-affidavit of the party sought to be joined; the deponent state thus: 3. Based on my knowledge of the historical mismanagement and recent events which culminated in the appointment by Sterling Bank Plc. of a Receiver Manager over the moribund assets and liabilities of the present Defendant, I state that the present Defendant ceased to carry-on business at its former premises, situate at Km. 26, Lagos-Ibadan Express-Way, Ibafo, Ogun State, following the sale of its said moribund assets and liabilities, pursuant to an Asset Sale and Purchase Agreement entered into between the Receiver Manager (duly appointed by Sterling Bank Plc, pursuant to a Deed of Debenture duly executed in favour of the Sterling Bank Plc. by the Defendant) and FS CAPITAL LIMITED (as Purchaser of all the said assets and liabilities of the Defendant). Now produced shown to me and marked Exhibit JB 1 and JB 1A are copies of receipt of sale issued by Sterling Bank Plc. in favour of FS CAPITAL LIMITED. (The underlining is the Court’s for emphasis). 4. I am aware that in spite of sale of the Defendant’s assets and liabilities to FS CAPITAL LTD, the Defendant was not wound-up and thus remain a valid legal entity, competent to sue and be sued. (The underlining is the Court’s for emphasis). 5. As part of the transaction dynamics for the establishment of effective management and administration structure necessary to revive and transform the moribund assets into a viable going concern, and to also shield the said moribund assets from any interference and or distractions by the creditors of the Defendant, the Receiver Manager, in pursuance of the powers vested in him under the relevant sections of the Companies and Allied Matters, Act (CAMA) LFN 2004, incorporated the Party-Sought-to-be-Joined to manage and operate only the transferred assets (without the liabilities) of the Defendant which remains the responsibility of the transferee, FS CAPTAL LTD to settle. Now produced shown to me marked Exhibits JB 2 and JB 3 are; a copy of certificate of incorporation of the Party-Sought-to-be-Joined, and a copy of the instrument of transfer of assets in favour of the Party-Sought-to-be-Joined respectively” (The underlining is the Court’s). According to the deponent of the counter-affidavit, Exhibits JB 1 and JB 1A are copies of receipt of sale of assets and liabilities of the defendant issued by Sterling Bank Plc. in favour of FS CAPITAL LIMITED. These documents are at pages 310 and 311 of the record respectively. Exhibits JB 1 is dated December 6, 2016 and addresses to “the Managing Partner, Fischer & Blair” by Sterling Bank Plc. and Exhibits JB 1A is dated June 2, 2017; it has the same addressee and author as Exhibits JB 1. FS CAPITAL LIMITED is not mentioned in the two documents as the company that purchased the assets and liabilities of the defendant, contrary to the deposition of Jadesola Balogun in paragraphs 3 & 4 of the counter-affidavit. And so, the party sought to be joined has not succeeded in showing the Court by its affidavit evidence or through any document that the assets and liabilities of the defendant were sold to FS Capital Limited; hence, that fact is accordingly discountenanced. In paragraph 5 of the counter-affidavit, the deponent admitted that the Party-Sought-to-be-Joined was incorporated to manage and operate only the transferred assets (without the liabilities) of the Defendant, It is my considered view that if the Party-Sought-to-be-Joined as a defendant in this case is not so joined, the cause of this suit is liable to be defeated and I so find. I further find that it is essential to join the Party-Sought-to-be-Joined as a defendant so that the company may be bound by the result of the trial in this case. Consequently, I hold that the ‘Party-Sought-to-be-joined’ (BNSL Foods, Feeds & Veterinary Pharmaceuticals Limited) is a necessary party in this case. The objection of the party sought to be joined is hereby dismissed and I accordingly order that ‘BNSL Foods, Feeds & Veterinary Pharmaceuticals Limited’ is to be joined as the second defendant in this case. Ruling is entered accordingly. I make no order as to cost. Hon. Justice F. I. Kola-Olalere Presiding Judge