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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT ABUJA BEFORE THEIR LORDSHIPS Hon. Justice B.A. Adejumo - President Prof. B.B. Kanyip - Member Barr. M.B. Dadda - Member DATE APRIL, 27, 2006 SUIT NO. NIC/2M/2002 BETWEEN Association of Senior Civil Servants of Nigeria ) - Appellant/Respondent AND 1. Government of Rivers State 2. Head of Service of Rivers State 3. Attorney-General of Rivers State - Respondents 4. Accountant General of Rivers State 5. Nigeria Civil Service Union - Applicant/Respondent REPRESENTATION Mr. Enobong Etteh for Applicant/Respondent Mrs. C.N. Iroegbu for 1st – 5th Respondents Mr. B.E. Mbagwu for 6th Respondent/Applicant RULING The Association of the Senior Civil Servants of Nigeria (herein referred to as “Applicant”) has brought the substantive application to this court by way of motion on notice against 1st to 4th Respondents only with the following prayers: 1. An order for enforcement of this court judgment in Suit No. NIC/5/93 delivered on 27th June, 1995 by compelling the said respondents to forth with implement Establishment circular No. 11/2000 by paying the Association of the Senior Civil Servants of Nigeria the union dues deducted from eligible members of the association in the Civil Service of Rivers State on grade level 07 and above. 2. An order granting leave to the Applicant to levy execution on the respondents to enforce the said judgment. 3. And for such further order(s) as the court may deem fit to make in the circumstances. The application was dated 4th November, 2002 and filed on 29th November, 2002. The application is supported by a 20-paragraphed affidavit dated 29th November, 2002 and sworn to by one Comrade A. B. Lawal, Deputy Secretary-General of the applicant union. Attached to the affidavit are exhibits ‘A’ and ‘B’. The counsel for the 1st to 4th respondents filed their 14-paragraphed counter affidavit dated 4th June, 2002 and sworn to by one Edison Omeodu, the Principal Administrative office attached to the office of second respondent and filed the same date with Exhibit “IC” attached. The Nigeria Civil Service Union (NCSU), which is not a party to the application for the enforcement, brought a motion on notice dated 3rd June, 2003 which is supported by a 12-paragraphed of affidavit sworn to by one Comrade Lucy Offing, the Chief Secretary to the Union which is dated 3rd June, 2003 and filed the same date. The affidavit is accompanied by exhibit ‘A’. The NCSU sought for an order of this court to be joined as one of the respondents as interested party in the application for enforcement of the said judgment in Suit No. NIC/5/93 of the court delivered on 27th June, 1995. The action was brought in pursuant to Rule 14 of NIC Rules. The application for joinder was considered by this Court and granted on 25th May, 2004. At being joined, the NCSU filed a 23-paragraphed counter affidavit to the application for enforcement. The counter affidavit was sworn to by one Nwokeabla Nwando, a counsel in the chambers of Messrs Mbagwu & Co. with exhibits “RAI” to “RA4” attached. Thereafter, the NCSU filed a motion on notice dated 15th February, 2005 pursuant to Rules 4 and 15(1), (3) & (5) of the N.I.C. Rules praying the court for: (1) An order of the court consolidating this Suit No. NIC/2M/2002 with Suit No. NIC/6M/2000 – Association of Senior Civil Servants of Nigeria v. Government of Anambra State and 5 ors, which is also pending before the court. ALTERNATIVELY (2) (a) An order directing that the final decision in Suit No. NIC/6M/2000 shall bind the parties in this Suit No. NIC/2M/2002 and determine the issues in the said suit. (2) (b) An order staying further proceedings in this Suit No. NIC/2M/2002 pending the determination of the said Suit No. NIC/6M/2002. (3) And such further or other order(s) as the court may deem fit to make in the circumstances. The motion is supported by an 8-paragraphed of affidavit dated 15th February, 2005, sworn to by one Ibe James Aroh, litigation clerk in the chambers of Mbagwu & Co. and filed the same date. The court then directed that the motion for the consolidation be moved by the counsel to the 5th respondent, the NCSU. In moving his motion, Mr. Mbagwu relied on all the paragraphs of the affidavit in support of the motion for consolidation. The counsel then went on to say that neither the Applicant (ASCSN) nor the 1st – 4th Respondents (Government of Rivers State and its organs) had filed any counter-affidavit to their application. That the claims in this suit and in Suit No. NIC/6M/2000 are substantially the same as per the counter affidavit filed in this Suit by the 1st – 4th respondents as well as those of the 1st – 5th respondents in Suit No. NIC/6M/2000. That even the defence of the respective respondents in both suits is essentially the same. That even the 1st – 4th respondents in this suit have raised the issue of consolidation in para.13 – 13a of their counter affidavit to the substantive application. The counsel then submitted that this shows that the 1st – 4th respondents do not opposed their application for consolidation. It was the counsel argument that the essence of consolidation, is to avoid multiplicity of actions when similar issues are involved in two pending cases in the same court and particular when parties are substantially (though they may not be necessarily or exactly the same in both suits. The counsel submitted further that the determining factor here is the fact that the end decision of the court in both cases will be the same in view of the identical issues that are involved. Therefore, that the court is expected to use consolidation to save cost and enhance the convenience of the parties. The counsel then referred the court to the cases of OKOYE v. EZEMENIKE [2003] 3 NWLR (Part 806) 52 at pp.69 D-G and 57 Ratio 5, and UME v. IFEDIORAH [2001] 8 NWLR (Part 714) 35 at pp.37-38 Ratios 2 &3. The counsel then urged that, on the basis of equity, the court should use its discretion in their favour. To the counsel, this application is based on the fact that Suit No. NIC/6M/2000 has reached address stage which would more likely expedite action in determining the two cases. Furthermore that the applicant to the substantive suit has not complained of any inconvenience or hardship they will encounter or suffer by reason of consolidation as they have not filed any counter affidavit to disclose those facts. The counsel then went on to argue that unless there is any law precluding the grant of the application, and with no opposition made to it, the court should grant their prayers. Mrs. Iroegbu, counsel to the 1st – 4th respondents, in her submission said that they stand by their counter-affidavit in the substantive suit and leave it to the court’s discretion to grant or refuse the application for the consolidation. She concluded that technically, they are not opposing the application for the consolidation. Mr. E. Etteh, counsel to the applicant/respondent opposed the application for consolidation on points of law relying on the facts before the court as per the records available. The counsel submitted that the application for consolidation has not referred the court to any provision in the Trade Disputes Act (TDA) Cap. 432 LFN 1990 or the National Industrial Court Rules Akin to Order 15, Rules 1, 2 and 3 of the High Court Rules under the Anambra State Civil Procedure Rules 1988, which was the basis of the decision in the case of Okoye v. Ezemenike, supra, referred to the court. On this, the counsel submitted that the two decisions relied upon by the 5th respondent were both for the interpretation and application of relevant provisions specifically enacted for consolidating suits by a High Court. That both decisions are, therefore, inapplicable in this matter particularly as the 5th respondent has not referred the court to any similar provisions in the law or rules governing proceedings of this court. The counsel further submitted that, on the face of the application for consolidation, it was brought pursuant to Rules 4 and 15 of the NIC Rules. These Rules 4 and 15, the counsel submitted, are inapplicable to the issue at hand as there is no defect sought to be cured. The counsel then argued that the application of consolidation filed is, therefore, incompetent. On the second point, the counsel submitted that the application should not be granted because the parties in the two suits are not the same and they do not reside in the same state. More importantly, that the respondents in Suit No. NIC/6M/2000 were not even put on notice in respect of the application for consolidation. The counsel further argued that it would work injustice to say proceedings in one suit in order to abide the outcome of another, that is, Suit No. NIC/6M/2000, when this court cannot determine when that other matter would be concluded. The counsel finally urged the court that rather than stay the proceedings, it should grant accelerated hearing of this case if the intention is to speed up the matter. Counsel concluded by urging the court to strike-out the application for consolidation. After a careful consideration of the process filed in this matter and the submissions of counsel, we found no immediate justification for granting the prayer for consolidation. Whereas this court has previously granted prayers for consolidation of cases, this has been always at the discretion of the court. The experience in such consolidation has been that the consolidated case has been bugged down by one issue or another. In the end, the expedience sought to be achieved has always been lost. In the present application for consolidation, it has not been made out that much would be lost if the prayer for consolidation is not granted. In the circumstance, therefore, we do not see any need to consolidate this suit with Suit No. NIC/6M/2000. As for the alternative prayer, that the proceedings in this suit should be stayed awaiting the decision in Suit No. NIC/6M/2000, our view is that both proceedings should continue and any one of them that is completed first would have its principle applied in the other. Suit No. NIC/6M/2000 may have reached address stage, but there is no guarantee that it would be completed before this suit. In the circumstance, it is our ruling that the proceedings in the two suits in issue should proceed separately. Ruling is entered accordingly. ………………………………… Hon. Justice B.A. Adejumo President ………………………….. ……………………….. Prof. B.B. Kanyip Barr. M.B. Dadda Member Member