RULING. 1. This deals with motion on notice dated 16/3/2019 and filed on the 13/5/2019, brought pursuant to Order 26 Rule 1(1) 4 & 5 and Order 13 Rules 4 & 5 of the National Industrial Court of Nigeria Civil Procedure) Rules and under the inherent jurisdiction of the court. Vide this application the Claimant is praying for:- 1. An order to join Kogi State Polytechnic as the 3rd defendant in the extant suit. Suit no. NICN/LKJ/07/2017, Academic Staff Union of Polytechnics & Anor. V The Executive Governor of Kogi State & Anor. 2. Leave to amend the complaint, statement of facts and the accompanying processes in the suit. Academic Staff Union of Polytechnics & Anor. V The Executive Governor of Kogi State & Anrr. Suit No. NICN/LK07/2017, to wit amend the name of the 2nd Claimant to read Non-academic Staff Union Of Educational and Associated Institutions instead of Non-Academic Staff Union. 3. Leave to generally amend the complaint, the statement of facts and the accompanying process in the extant suit. Academic Staff Union of Nigeria & Anor. V Executive Governor of Kogi State & Anor. Suit No. NICN/LKJ/07/2017, which the proposed amended complaint, statement of facts and accompanying processes are exhibited and marked ‘A’ in order to now present the case as it touches, affects, and/or concerns the 3rd defendant and to also correct identifies typographical and/or grammatical errors in the originating processes. 4. Order deeming the amended complaint, amended statement of facts and the amended accompanying processes all dated 16/3/2019 and already filed and served as properly filed and served having paid the necessary filing fees. 2. The ground for this application are: I. In the interest of justice and farness II. To enable the claimants present their case to the best of their ability. 3. The application is supported by a 10 paragraphs affidavit sworn to by Baluromi Samuel Sunday, a Lecturer in the Kogi State Polytechnic. A written address was also filed along with the application. 4. Lucky Wisdom Dureke, Esq; counsel for the Claimant in oral adumbration relied on the deposition contained in the affidavit in support and adopts the written address as his argument. In the written address a lone issue was formulated for determination, to wit: ‘’Whether it serve the interest of justice and fair hearing to allow the claimants application so that the case is heard on the merit. 5. In arguing the sole issue counsel referred to paragraphs 13 – 17 of the affidavit in support and submitted that by the peculiar facts and circumstances of the instant matter, it is necessary to join the party sought to be joined. An application for joinder is determined by the peculiar facts and circumstances of the matter. It is contended that the suit will not be effectually and completely determined except the party sought to be joined, is joined. 6. According to counsel the instant application is to ensure that all the parties involved in the dispute before the court are before the Court and heard. The Claimants’ application seeks preserve the right of all persons or parties in the transaction of the union to fair hearing. 7. Counsel contended that it is crystal clear from the Affidavit in Support of the Motion on Notice and the existing Statement of Facts in the suit that the Claimant has made out legal claims against the party sought to be joined, which requires to be heard by the honourable Court. Whether the claim is weak or otherwise is immaterial at this stage. It is only after trial that the Court can determine this. 8. It is the contention of counsel that the application for joinder is brought to avoid multiplicity of actions as the party sought to be joined is affected by the claims of the Claimant and can be sued by the Claimant. It will amount to a waste to juristic time and ink to bring separate actions when the parties in the transaction are the same and also, are the facts. It will amount to duplicity of actions to sue NNPC (sic) separately. On this counsel refers to the case of Chef Paul & Ors. V Raymond Ogolo & Ors. (2003) 32 WRN 1 at 33, where the Supreme Court stated that, "joinder of parties is to avoid multiplicity or duplicity of actions and to save litigation time in the judicial process. It is also one way of trying to avoid abuse of the Court process." 9. To further buttress this point counsel rely on the Supreme Court decision in GREEN V. GREEN ( 1987) 3 NWLR (Pt. 61) at 480, which is a locus classicus on the issue. It is further argued that the Claimant has disclosed a legitimate or genuine complaint or grievance against the party sought to be joined, which ought to be protected in the instant action. 10. It is reiterated that in the peculiar circumstances of this case, it will serve the interest of justice that the party sought to be joined to be joined. So that all the parties come before the Court and be heard in the matter. 11. Counsel submitted that it is important to state that trial has not started in the case. The Defendants have ample opportunity to amend their defence too. 12. It is submitted that the application for amendment is being made because the documents and facts being incorporated in the case were recently made available to the Claimant's counsel as they were recently obtained by the Claimant. 13. It is also submitted that the Defendants will not be prejudiced by a grant of the application. As Courts have moved away from technical justice to substantial justice. On this submission counsel relied on the case of Obakpolor V The State ( 1991) 1 SCNJ 91 at 103, lines 27 - 30 wherein it was stated as follows. ‘’It is paramount duty of courts to do and not cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions or technicalities inherent in rules of Courts." 14. It is submitted that the omission was not deliberate. It was the sin of their counsel. Counsel pray that it should not be visited on the Claimants. 15. It is also submitted that the Defendants will not lose anything or be prejudiced in any way if the Defendants are allowed to file and serve the said processes. Counsel stated that Amended Statement of Defence and the accompanying Written Deposition have already been filed and served as the necessary fees have been paid. Counsel prays the Court, in the circumstance, to allow the Motion on Notice so that all the parties are given opportunity to present their case and that the case shall be heard and decided on the merit. 16. It is also argued that it will serve the interest of justice and fair hearing, if the Claimant's application is granted by this honourable Court to enable the Claimant present their case to the best of their ability. The affidavit in support has stated the reasons for bringing the application. 17. In reaction to this application, the counsel for the Defendants filed a written address dated 22/5/2019 and filed on 23/5/2019. E. A. Haruna, Esq; counsel for the defendants adopted his written address in opposition to the application for amendment. Counsel formulated a single issue for determination, to wit: ‘’Whether the reliefs sought in paragraphs 2, 3 and 4 on the motion paper are in compliance with the clear provisions of Order 26 of National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 (hereinafter referred to as the Rules of this court). 18. In arguing the sole issue for determination counsel commenced his submission by contending that it is important to point out from the onset that the right of parties to any proceedings regulated by the Rules of this court to amend court processes filed by them is not at large. In other words, the exercise of the right must come within the limits set by the Rules of this court. For instance, no party is entitled to amend his originating or other processes with the leave of court more than twice and such amendment must not completely change the cause of action endorsed on the process. See order 26 rule 2 of the Rules of this court. 19. On the amended list of documents to be relied upon accompanying the motion and another separately filed on 13th May, 2019, counsel contended that no list of documents to be relied upon accompanied the originating processes filed on 26th October, 2017. In other words, no leave can be sought and or granted to amend any process that has never existed. Consequently, both the amended list of documents to be relied upon accompanying the motion and another separately filed on 13th May, 2019 are incompetent and should be discountenanced or struck out by this Honourable court. 20. What is more, the amended statement of facts accompanying the motion has not in any way indicated or disclosed which paragraphs of the statement of facts filed on 26th October, 2017 are being sought to be amended and in what terms. In effect, what is sought to be achieved is to completely rewrite the subsisting statement of facts filed on 26th October, 2017. It is respectfully submitted that this is in violation of the clear provisions of Order 26 rule 4 of the Rules of this court. This is because, as pointed out earlier, the paragraphs of the subsisting statement of facts filed on 26th October, 2017 sought to be amended and the terms of such proposed amendment are not disclosed in the amended statement of facts accompanying the motion contrary to the requirement of Order 26 rule 4 of the Rules of this court. 21. Furthermore, the amended statement on oath of witness accompanying the motion and another separately filed on 13th May, 2019 are completely unknown to the Rules of this court and the provisions of the Evidence Act. See Order 26 rule 5 of the Rules of this court. What ought to accompany the motion is the additional or further statement on oath of the witness whose earlier statement on oath accompanied the originating process filed on 26th October, 2017. There is no provision in the Rules of this court for a witness to amend his earlier evidence, oral or written, on oath. Similarly, there is no such provision in the Evidence Act. Moreover, by the clear provisions of Order 26 rule 8 of the Rules of this court, no amended process can be filed where leave to amend it has not been sought and granted by this Honourable court. Consequently, the amended complaint, amended statement of facts, amended statement on oath of witness and amended list of documents to be relied upon separately filed on 13th May, 2019 are incompetent and are liable to be struck out. Your lordship is respectfully urged to discountenance or strike out the said processes for being in violation of the provisions of order 26 rules 5 and 8 of the Rules of this court. 22. In reply to paragraph 4.12 of the written address in support of the motion on notice, where reference was made to the current attitude or inclination of our courts which is to do substantial justice between parties in litigation instead of reliance on technicalities. The case of Obakpolor V The State (1991) 1 S.C.N.J 91 at P. 103 was cited in aid. It is trite that doing substantial justice is not for the purpose of disregarding clear provisions of either substantive law or procedural rules such as the Rules of this court already identified. A party whose process is in violation of the provisions of the Rules of this court cannot escape the consequence of such violation by pleading the need to do substantial justices. With due respect, that will be akin to the conduct of an unruly horse. Counsel urged the court to resolve the sole issue for determination against the applicants in relation to reliefs 2, 3 and 4 on the motion paper and refuse to grant same. COURT’S DECISION: 23. I have carefully and painstakingly perused the motion on notice for joinder and amendment of originating process and its accompanying processes as well as the written address filed by the defendants in opposition the application of the claimant for amendment of their processes. 24. It is patently clear from the motion paper that the main relief is relief one which seeks to join the Kogi state Polytechnic as the 3rd Defendant in this suit. The remaining reliefs 2, 3, 4 and 5 are ancillary to relief one. The grant or refusal of relief one will have tremendous implication on the other reliefs in the motion paper. 25. It is to be observed that before a party can be joined to a pending suit the party sought to be joined must be a necessary party. The Supreme Court in L.S.B.P.C VS. Purification Tech (Nig) Ltd (2013) 7 NWLR (part 1352) page 82 at 91 Ratio 12 held thus: " ... A necessary party is someone whose presence is essential for the effectual and complete determination of the issues before the Court. He is a party, in the absence of whom the whole claim cannot be effectually and completely determined." 26. The claimants have deposed in the affidavit in support of this motion that the party sought to be joined is a necessary party and his joinder will enable the court effectually and efficiently determine the issues in controversy between the parties. The case cannot be very effectually and completely determined without the joinder. The defendants have not filed any counter-affidavit to contradict or controvert the averment of the claimants in the affidavit in support. This means that the defendants have accepted the content of the deposition as truth and that they do not have anything to tell the court different from what the claimants have averred in their affidavit in support of this application. See the cases of Aromire V. Awoyemi (1972) All NLR (pt. 1)101 at 108; Lajumoke V. Doherty (1969) 1 NMLR 281. The Supreme Court has held in Cotecna Int. Ltd v. Churchgate (Nig) Ltd (2010) 18 N.W.L.R pg 346, pp 392-393, paras F-A, that Court should ask itself the following questions in order to decide the effect of non-joinder. a. Is the cause or matter to be defeated for non joinder? b. Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a Defendant? c. Is the 3rd party a person who should have been joined in the first instance? d. Is the 3rd party a person whose presence before the Court as a Defendant will be necessary in order to enable the Court to effectually and completely, adjudicate or settle all the questions involved in the cause or matter? 27. Also in the Supreme Court case of Babayeju v. Ashamu (1998)9 NWLR pg 567 and 555 the Supreme Court per Ogwuegbu, JSC in the lead judgment observed thus: "Necessary party is someone whose presence is necessary as a party. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled therefore must be a question in the action, which cannot be effectually and completely settled unless he is a party." 28. In Igwe I. R.E Iweka & Ors v. AGF & Ors (1996) 4 NWLR (pt442) 1 pg 362 the principles guiding the joinder of parties were stated to include the following: a. There should be a joinder of a party where it will prevent multiplicity of actions arising from the same series of transactions and would thus enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the case or matter. b. There should be joinder of a party if his presence before the Court is necessary to enable the Court properly determine once and for all the issues for adjudication before the Court. Thus, a party should be joined if he will have his interest irreparably prejudiced should he not be joined as a party. c. There should be joinder of a party if he will be bound or is likely to be affected by the result of the decision of the Court. d. There should be a joinder of a party as Defendant if the cause or matter will be defeated or if it will not be possible without doing injustice to the Defendant to adjudicated on the cause of action set up by the Claimant. See Adediran vs. Interland Transport Ltd (1993) 9 NWLR (pt. 214) p.155, Igbokwe vs. Igbokwe (1993) 2 NWLR (pt. 273). 29. The crucial reason for a joinder is to ensure that an interested party is not caught by the principle of res judicata in the sense that he remained aloof to a suit in which his legal interest is at stake and secondly to avoid a multiplicity of actions arising from the same subject matter. See Uku v. Okumagba (1974) 3 se pg 38, Oladeinde vs. Oluwole (1962) WNLR pg 41. 30. The question of joinder of parties is, in my view, not merely a question of disclosure of the extent of interest that guides the Courts in the principle of joinder of parties. It is enough if the parties sought to be joined will be bound by the outcome of the case in question. Thus, a party who shows the probability of being affected by the result of the action should have shown enough interest to be allowed to join in the action. The authorities cited state alternative and disjunctive conditions for joinder. The law does not intend that water tight stringency should be imported into it simply to make the task of joinder next to impossible. 31. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled if he is not a party. 32. The two main objective for joining a party in an action are: i) To put an end to litigation and not to have two parallel proceedings in which the same issue is raised leading to different and inconsistent results. ii) To make the person joined to be bound by the result of the litigation. See Re Mogaji (1986) 1 NWLR (pt. 19) pg 759. In the case of Chinweze & Anor vs. Mrs. Masi & Anor. (1989)1 NWLR (pt. 97) 254 it was held inter alia that the Court has a duty to prevent the expensive luxury of having two separate suits where it can by joinder settle the whole matter in one action. See Registered Trustees of National Association of Community Health Practitioners of Nigeria & Ors. Vs. Medical and Health Workers Union of Nigeria (MHWUN) & Ors. (2008) 34 NSCQR pg. 321 at 401. 33. It is a fundamental principle of law that all parties who will be affected one way or other in a litigation must be made parties. They are entitled to be heard and must be heard before judgment is given by the Court. This is because it is against all known principles of fair hearing for a party to be condemned in a judgment in which he is not given an opportunity to lead evidence either in support or in defence of his right. See Onabanjo vs. Ewetuga (1993)4 NWLR (pt. 288) pg 445. 34. In view of the foregoing exposition of the law and in the apparent lack of objection from the defendants to the joinder of Kogi State Polytechnic, I hereby grant the claimants relief for joinder of Kogi State Polytechnic as the 3rd defendant in this suit. 35. The second relief is for amendment of the name of the 2nd claimant to read Non-Academic Staff Union of Educational and Associated Institutions instead of Non-Academic Staff Union. What this relief shows is that the 2nd claimant in this suit is not a juristic person. The question to ask is can a non-juristic person be amended? 36. I have read the endorsement on the Complaint taken out by the claimants among whom is the 2nd claimant, which the claimants are seeking for leave to amend to read Non-Academic Staff Union of Educational and Associated Institutions. 37. For a suit to be competent for adjudication by a court of law there must be at least a competent claimant and a competent defendant in the sense that both must be juristic persons who can sue or be sued accordingly. In situations where there were a single claimant and a single defendant, the lack of competence on the part of any of them, would render the action incompetent thereby robbing a court of the requisite jurisdiction to entertain it. See OKOYE V. N.C. & F. CO. LTD. (1991) 6 NWLR (199) 501; AWOYE V. OBASANJO (2006) FWLR (334) 1967. In FAWEHINMI V. NBA (NO. 2) (1989) 2 NWLR (105) 558, it was held that no action can be brought by or against any party, other than a natural person or persons unless such a party has been given by statute, expressly or impliedly, or by common law either:- (a) a legal persona under by the name by which it sues or is sued. (b) a right to sue or be sued by that name. 38. In actions where there are single parties and any one of them is shown not to be juristic and consequently incompetent to sue or, be sued, the proper parties would be absent in the action and the court would not have jurisdiction to entertain it. EKPERE v AFORIZE (721) 1 ALL NLR 120; OLORIODE V. OYEBI (1984) 1 SCNLR, 390; AMUDA v OJOBO (1995) 7 NWLR (406) 170; PLATEAU STATE v A-G, FEDERATION (2006) 3 NWLR (967) 346 at 423. 39. However, in action where there are more than one claimant and more than a single defendant, the competence of any one of them to sue or be sued, would not simpliciter affect and defeat the competence of the action on ground of want of proper parties. Such situations are called misjoinder of parties which involves joining competent and incompetent or necessary and unnecessary parties in an action. In the case of A-G., RIVERS STATE V. A-G, AKWA IBOM STATE (2011) 3 MJSC 1, at 93, the Supreme Court had restated the principle thus:- "No cause or matter shall be defeated by reason of misjoinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." 40. Similarly, the apex court had earlier in the case of CROSS RIVER STATE NEWSPAPER CORP. V. ONI (1995) 1 NWLR (371) 270 held that:- "It is a settled principle of law that non-joinder or misjoinder of parties will not be fatal to an action and non-proceedings shall be rendered null and void for lack of competence or jurisdiction simply because a plaintiff joins a party who ought not to have been joined." See also OKOYE V. N.C. & F. CO. LTD. (supra) SAPO V. SUNMONU (2010) 3 - 5 SC (II) 130; OSONDU & CO. LTD. V. BONCH (NIG.) LTD. (2002) 3 SC, 42 at 61. 41. By the position of the law as stated in the authorities cited above only juristic person or party can sue or be sued in an action in a court of law. Non-Academic staff Union, not being a legal person by the name it sued the defendants in this suit was not a competent party whose name can be amended in the suit. In law, it was not a party in the suit and so had no name which can properly be amended. There is nothing to amend in a non-existent party's name in a suit. 42. A misjoinder or mistake in name occurs only when the name of an existing party or entity is mis-spelt or misstated in a court process. Such a misnomer or mistake can be corrected by way of an amendment on the basis that it relates to the name of a juristic person or entity which was wrongly stated or set out on the process. The name of a non-juristic and therefore non-existent entity in law cannot be misspelt, misnamed or wrongly stated or set out and so the issue of an amendment to the name cannot and will not arise. Thus, a party cannot amend or effect a correction in a court process by replacing or substituting a non-juristic person or entity with one with juristic capacity to sue, or be sued for there was initially no party in existence that could be replaced or substituted. See OLU OF WARRI V. ESSI (1958) SCNLR 385; OKECHUKWU V NDOH (1967) NMLR, 368; EHIDEMHEN V.MUSA (2000) 8 NWLR (669), 540 at 567. 43. In view of the foregoing, there is no merit in relief 2, the end result is relief 2 is hereby refused and same dismissed. 44. Relief 3 is for leave to generally amend the complaint, the statement of facts and accompanying processes as shown in exhibit ‘A’. the defendants objects to grant of this prayer on the ground that it violated the provisions of Order 26 rules 3, 4 and 5 of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017. 45. I have had a hard look at the originating processes commencing this suit filed on 26/10/2017, there is nowhere a list of documents to be relied on at the trial was filed along with the complaint and the statement of facts. In the circumstances, I have no choice than to agree with counsel for the defendants that the court does not have power to grant an amendment of non-existent process. I also agree with counsel that Order 26 rule 4 and 5 did not contemplate amendment of witness statement on oath. What the rules requires a claimant or defendant to do is whenever there is an application for amendment or addition of a party, a separate witness statement on oath is filed. 46. However, in the case at hand having granted leave to claimants to join 3rd defendant, the claimants are entitled to make consequential amendment to reflect the new position of thing. In the circumstances and in view of the peculiar facts of this case I hereby grant leave to the claimant to make consequential amendment to reflect the joinder of 3rd defendant in the originating processes commencing this suit. 47. Before, I conclude my ruling, let me say that the claimants’ application is replete with facts not relevant to this case for instance, Nigeria National Petroleum Corporation featured in the written address as one of the parties in the suit, but, the reality is that it is not a party in this suit. It must have been a mistake or as a result of copy and paste, used by counsel in preparing his address. There are also occasions when counsel mixed up names of parties, where he refers to claimant as defendant and vice versa. This, has raised concern on diligence. Counsel preparing legal documents for filing in court should appreciate the enormity of a solicitor’s work and its demands for seriousness. Counsel has a duty to ensure that they are meticulous and certain, so as to avoid making mistakes that may not be view with understanding, but with disdain, scorn and sometime unwarranted criticism been heaped on legal practice. 48. On the whole, the claimants’ application succeeds in part. For avoidance of doubt the order of the court is as follows:- 1. Leave is hereby granted to the claimants to join Kogi state Polytechnic as the 3rd claimants in this suit. 2. An order is hereby granted to the claimants to reflect the joinder of 3rd defendant in the originating processes commencing this suit. 3. An order to amend the name of 2nd claimant to read Non-Academic Staff Union of Educational and Associated Institutions is hereby refused. 49. Ruling is entered accordingly. Sanusi Kado, Judge. Rotimi Olujide, Esq; for the Claimants Francis Adejoh, Esq; for the Defendants.