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BEFORE THEIR LORDSHIPS Hon. Justice F. I. Kola-Olalere - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: September 29, 2011 SUIT NO. NIC/LA/13/2010 BETWEEN 1. Lt. Col. Amodu Akintoye and 24 others VS 1. Federal Ministry of Works, Housing and Urban Development 2. Attorney General of the Federation REPRESENTATION S. O. Alademehin Esq., for the claimants. Olalekan Lasaki Esq., for the 2nd defendant, and holding the brief of Bayo Funsho Adaramola Esq. RULING The claimants took out a complaint dated and filed on the 24th May 2010 against the defendants praying for: A. The sum of N21,012,368.10 being balance on gratuities, salary for the month of March, 2007, 14 days salary in lieu of notice, leave allowance from 2002 to 2007 and fixed overtime from 2002 to 2007. B. Interest on the sum of N21,012,368.10 at the rate of 21% per annum from the 1st day of March 2010 until judgment and thereafter at the rate of 21% per annum until liquidation of the judgment debt . C. The cost of this action. Accompanying the complaint is the statement of facts, a list of documents to be relied on by the claimants and a list of witnesses. In reaction, the 2nd defendant filed a preliminary objection dated 29th September 2010 but filed on the 11th October 2010, a conditional appearance, statement of defence, list of documents all dated 29th September 2010 but filed on the 27th October 2010. The preliminary objection is brought pursuant to Order 11 Rule 1(1) of the National Industrial Court Rules 2007 and the inherent jurisdiction of the court praying for: 1. An order striking out this suit for lack of jurisdiction. 2. An order striking out this suit for being instituted by incompetent claimants. 3. And for such order(s) as this court may deem fit to make in the circumstances of this case. The grounds upon which the preliminary objection is brought are: 1. The claimants lack the locus standi to institute this suit, as they are not parties to the contract of employment that they are seeking to enforce. 2. That the claimants being incompetent, this court lacks the jurisdiction to hear and determine this suit. The objection is supported by an 8-paragraphed affidavit sworn to by Blessing Isaac, a litigation Secretary. In reaction to this objection, the claimants on the 1st November 2010 filed a 6-paragraphed counter-affidavit and a motion on notice brought pursuant to Order 3 Rule 3 and Order 11 Rule 1 of the National Industrial Court Rules 2007 praying for: 1. An order granting the claimants leave to amend the complaint and statement of facts by amending the name of the 1st defendant to read Federal Ministry of Works as contained in the proposed amended statement of facts annexed to the affidavit in support of this application. 2. An order joining the Nigerian Legion of 19 Kingsway Road, Ikoyi, Lagos as a claimant in this suit. 3. And for such order or further orders as the court may deem fit to make in the circumstances. The motion is supported by a 9-paragraphed affidavit sworn to by Lt. Omolere Omowunmi, the 14th claimant herein. The 2nd defendant did not file a counter-affidavit to this motion but filed a reply affidavit to the claimants’ counter-affidavit to the preliminary objection. The reply affidavit consists of 8 paragraphs and is sworn to by Olalekan Lasaki, of counsel on 16th March 2011. Both parties agreed to file written addresses in respect of the two applications which the court directed would be taken and heard together. The 2nd defendant’s written address in support of the preliminary objection is not dated but filed on the 31st March 2011. The claimants’ reply address is dated 19th May 2011 and filed on the 20th May 2011. There was no reply on points of law by the 2nd defendant. The written address by the claimants in support of their motion on notice for amendment and joinder is dated and filed on the 25th March 2011. The 2nd defendant’s address in opposition is dated and filed 5th May 2011 while the claimants’ reply on points of law is dated 19th May 2011 but filed on the 20th May 2011. The claimants’ counsel adopted their written addresses filed in respect of the two applications as their arguments. The 2nd defendant’s counsel was not in court to adopt his written addresses, which were, therefore, deemed adopted by the court. In respect of its preliminary objection, the 2nd defendant raised one issue for determination as follows: whether this court does not lack the vires/jurisdiction to entertain this suit. Learned counsel to the 2nd defendant submitted that jurisdiction is a threshold issue and that a court must have jurisdiction determined before it can hear the matter or make a binding order against the parties, citing Odofin v. Agu [1992] 23 NSCC (Pt. 1) 520 at 532. He further submitted that the issue of jurisdiction of a court is fundamental and that a proceeding no matter how well conducted without jurisdiction is a nullity, citing Rivers State Govt v. Specialist Konsult [2005] 7 NWLR (Pt. 923) 145 at 180 and Elugbe v. Omokhafe [2004] 11 – 12 SC 60 at 64. That at this stage, the only jurisdiction the court possesses is jurisdiction to determine or enquire into the question whether or not it has jurisdiction to hear this suit, referring to Inuh v. Ukoi [2002] 9 NWLR (Pt. 773) 653. The 2nd defendant’s counsel then went on to argue that the claimants, in conferring this court with the jurisdiction it lacks, filed an application seeking to join the Nigerian Legion as a party to the suit. That since the claimants failed to join the Nigerian Legion as a party to this suit they have no locus standi to institute the action. He further argued that the jurisdiction of this court to entertain this suit is eroded as the court is robbed of its jurisdiction for non-joinder of the Nigerian Legion, referring to C. M. I. Trading Service Ltd v. Yuriy [1998] 11 NWLR (Pt. 573) 284. Learned counsel submitted that the claimants cannot confer, expand, expound or extend the jurisdiction of this court, citing Aguisiobo v. Okagbue [2001] 15 NWLR (Pt. 737) 502 at 519 and Tukur v. Gongola State [1989] 20 NSCC (Pt. 111) 225 at 241. The 2nd defendant’s counsel submitted, on the strength of the decision in Oroh v. Braimoh [1990] 2 NWLR (Pt. 134) 641 at 645, that the law only allows a court to hear and determine the issue of the competence to hear the matter before entertaining an application for joinder. He further submitted that even the Rules of court cannot dictate when and how to raise or challenge the jurisdiction of a court, citing Nasir v. C. S. C. Kano State [2010] 6 NWLR (Pt. 1190) 253 at 276 C – D. Counsel finally stated that the purpose of this objection is that if successful, it terminates the hearing of the matter in limine either partially or wholly, referring to Amgbare v. Sylver [2008] All FWLR (Pt. 419) 576. He then urged the court to strike out the suit in its entirety for lack of jurisdiction and/or vires to entertain this suit. In reply, learned counsel to the claimants submitted that when the issue of jurisdiction is raised, the court must look at the statement of facts in order to determine whether the court has the jurisdiction to entertain the suit, citing Aremo v. Adekanye [2004] 7 SC (Pt. 11) 28 at 37 and Erhunmwunse v. Ehanire [2003] 5 SC 187 at 194. He stated that the claimants rely on all the averments in their statement of facts pursuant to the provision of section 74 of the Evidence Act [the year of the Act is not supplied] and that the claimants are parties to the contract. The claimants’ counsel argued that in a contract of service, the appropriate time to raise the issue of a party to a contract is at the substantive suit when trial has commenced, citing IMB Limited v. Makham [2001] 34 WRN 47 at 56. Learned counsel contended that the agreement was executed by the Federal Ministry of Works, the Nigerian Legion and each of the claimants. That it is wrong to look at the names of the parties in which only the Federal Ministry of Works and the Nigerian Legion are mentioned without looking at other clauses in the agreement particularly clauses 2.1, 2.4 and the names of those who executed the contract. He referred to paragraph 12 of the statement of facts where the claimants averred that the 1st defendant paid the salary of each of the claimants directly to the claimants’ bank accounts. The claimants’ counsel contended that there are three parties to the contract. The 1st party is the Federal Ministry of Works, the 2nd party, the Nigerian Legion and the 3rd party, each of the claimants. He further stated that the contract of service is between the Federal Ministry of Works and each of the claimants with the Nigerian Legion acting as a facilitator pursuant to the provision of section 2(1) of the Nigerian Legion Act and urged the court to look at clauses 1, 2.1 and 2.4 of the employment agreement. He submitted that whenever the court is faced with the construction and interpretation of a contract, the court must look at all the circumstances of the case from a very broad perspective in order to arrive at a fair and equitable decision, citing Omega Bank Plc. v. O. B. C. Ltd [2005] 1 SC (Pt. 1) 49 at 66 – 67. Learned counsel also stated that there is in existence an oral contract made between the Federal Ministry of Works and the claimants which can only be established at the trial of this suit referring to section 7(3) of the Labour Act. He urged the court to do substantial justice and not rely onto legal technicalities. He referred to the National Industrial Court Act 2006 particularly section 12(2)(b) and finally urged the court to dismiss the preliminary objection with substantial costs. In respect of the application for amendment and joinder, the claimants’ counsel raised two issues as follows: 1. Whether this is an appropriate case where the court will grant leave to the claimant to amend the name of the 1st defendant. 2. Whether this is an appropriate case where the court will join the Nigerian Legion of No 19 Kingsway Road, Ikoyi as a co-claimant in this case. In arguing this application, learned counsel to the claimants began by stating that the 2nd defendant has not served a counter-affidavit on him and, therefore, the 2nd defendant is not opposed to the application. In respect of issue 1, he submitted that the position of the law is that courts have the discretionary power to grant an amendment to correct the name of a party, citing Vulcan Gases Ltd v. GIV [2001] 5 SC (Pt. 1) 1 at 34. He stated that the claimants’ contract of employment was with the Federal Ministry of Works which later became Federal Ministry of Works, Housing and Urban Development. That subsequently, the Federal Ministry of Works was separated from Federal Ministry of Works, Housing and Urban Development which only became known to the claimants after the suit had been filed. Learned counsel submitted that the defendants will not be prejudiced if the amendment is granted, referring to Bank of Baroda v. Iyalabam Co. Ltd [2002] 7 SC (Pt. 11) 21 at 36 and urged the court to grant leave to amend the complaint and statement of facts by amending the name of the 1st defendant to read Federal Ministry of Works. On issue 2, learned counsel submitted that the party sought to be joined is a party to the contract of employment, referring to paragraphs 2, 4, 5 and 6 of the affidavit in support and paragraphs 4, 7 and 8 of the statement of facts. He stated that all these paragraphs show that the party sought to be joined is a necessary party to this suit and went on to submit that the position of the law is that the presence of a necessary party is essential for the complete determination of a case, citing Ige v. Farinde [1994] 7 NWLR (Pt. 354) 42 at 64 – 65. He further submitted that the rationale for joining a necessary party is to put an end to litigation, referring to In Re: Yusufu Faleke (Mogaji) [1986] 2 SC 431 at 449 and that even if the claimants did not file this application for joinder, the court can suo moto join the Nigerian Legion, citing Ayorinde v. Oni [2000] 2 SC 33 at 54. The claimants’ counsel then referred the court to paragraph 15 of the statement of facts and argued that the party sought to be joined has a financial interest in this action as it is entitled to N1,500.00 on each of the salaries of the claimant and so it will be affected by the result of this action. He urged the court to grant the prayers sought in this application. In opposing the claimants’ application, the 2nd defendant raised one issue for determination as follows: Considering the 2nd defendant’s preliminary objection filed against the competence, jurisdiction and/or vires of this Honourable court to entertain this suit, whether this Honourable court can accede to the request of the claimants to amend and join the Nigerian Legion. Learned counsel to the 2nd defendant began by submitting that not filing a counter-affidavit to the claimants’ application does not imply non-opposition of the application as it may be opposed on points of law, citing Egbugara v. NCC [2007] All FWLR (Pt. 361) 1788 at 1792. He further submitted that submissions of counsel no matter how brilliant cannot take the place of evidence because the claimants’ counsel gave evidence of the merger, restructuring and separation of the 1st defendant. He referred to Agballa v. Nnamani [2005] All FWLR (Pt. 245) 1052 at 1078. The 2nd defendant’s counsel then submitted that the application filed challenging jurisdiction takes precedence over any other application. That the only jurisdiction that a court has where the issue of jurisdiction is raised is to determine whether or not it has jurisdiction and the court cannot pronounce on any other application. He cited Odofin v. Agu [1992] 3 NWLR (Pt. 229) 536, Oroh v. Braimoh [1990] 2 NWLR (Pt. 134) 641 at 645, Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 423 and Elugbe v. Omokhafe [2004] 11 – 12 SC 60 at 64 and submitted that superior courts have held that even the rules of court cannot determine how and when to raise the issue of jurisdiction, further citing Shanu v. Afribank Nig. Plc. [2000] 10 – 11 SC 1, Nasir v. CSC of Kano State [2007] 5 NWLR (Pt. 1190) 253. The 2nd defendant’s counsel submitted that all the cases cited by the claimants’ counsel are not apt for the present situation of this suit and that neither are they in support of his case. He referred to Adio v. A-G Oyo State [1990] 7 NWLR (Pt. 163) 448. Counsel argued that the 2nd defendant has challenged the competence of this suit and so no amendment can be done since amendments can only be done on competent and valid processes, citing FBN Plc. v. May Medical Clinics [2001] 9 NWLR (Pt. 717) 28. He reiterated that a challenge to jurisdiction is fundamental and cited Rivers State Govt v. Specialist Konsult [2005] 7 NWLR (Pt. 923) 145, Abdulsalam v. Salawu [2002] FWLR (Pt. 117) 1103, Aguisiobo v. Okagbue [2001] 15 NWLR (Pt. 737) 502, Inuh v. Ukoi [2002] 9 NWLR (Pt. 773) 652, NEC v. Nzeribe [1991] 5 NWLR (Pt. 192) 485 at 472. He finally submitted that the claimants have failed in their duty to place relevant materials to substantiate “the averments in the affidavit, as it is not sufficient to rely on mere averments in the affidavit”, citing Livestock Feeds Plc. v. Funtua [2005] All FWLR (Pt. 286) 753, Tabai v. The VC, RSUS & Tech [1997] 11 NWLR (Pt. 529) 373. He urged the court to refuse the application for being frivolous, abusive and unmeritorious. Replying on points of law, the claimants’ counsel stated that the assertion of the merger, restructuring and or separation of the Federal Ministries is deposed to in paragraph 3 of the affidavit in support of the application and his reference to it does not amount to evidence by counsel. On the issue of which application should be heard first, counsel stated that the court had directed that both applications would be taken together and that this is supported by law, referring to Captain E.C.C. Amadi v. NNPC [2000] 6 SC (Pt. 1) 66 at 82. On the issue raised suo moto by the court, whether the Federal Ministry of Works is a juristic person who can sue and be sued, counsel submitted that it is a Government organ and/or Department hence the Attorney-General who is a representative of the Government is made a party to any suit against Government. He then submitted that the name Federal Ministry of Works is in law a juristic person and that the claimants are entitled to apply vide an oral application when moving their application for leave to amend to add the name of the Honourable Federal Minister for Federal Ministry of Works. We have carefully considered both applications, the submissions and the authorities cited by counsel. Aside from the fact that the 2nd defendant’s preliminary objection was first in time, it is trite law that it is the duty of the court to first determine the issue of jurisdiction when it is raised as the court cannot make any orders until the issue of jurisdiction is settled. See NDIC v. CBN & anor [2002] FWLR (Pt. 99) 1021. Therefore, the ruling on the preliminary objection will come first. The 2nd defendant’s objection is predicated firstly on the ground that the claimants lack locus standi as they are not parties to the contract sought to be enforced and secondly that the court lacks jurisdiction for non-joinder of the Nigerian Legion. On the question of not being parties to the contract sought to be enforced, what the 2nd defendant has done is to raise the defence of privity of contract, which in reality can only be raised as a defence to the action and not as a ground for preliminary objection challenging the jurisdiction of the court. All the arguments of the parties in that regard can appropriately only be raised when the merit of the case is being considered. In that wise we decline to make any pronouncement on it at this point of the case. On the second ground, the question is whether the non-joinder of the Nigerian Legion has deprived this court of jurisdiction to entertain this matter. In the case of Alhaja Rafatu Ayorinde & ors v. Alhaja Airat Oni & anor [2000] 2 SC 33 at 42, the Supreme Court held as follows: …failure to join a necessary party in an action is a procedural irregularity which does not affect the competence or jurisdiction of the court to entertain the matter before it. But where the irregularity leads to injustice or unfairness to the opposing party, it may lead to setting aside the judgment on appeal. Following from this decision, the non-joinder of the Nigerian Legion has not deprived this court of jurisdiction to entertain this suit. Furthermore, the 2nd defendant has not shown us how the non-joinder of the Nigerian Legion has led to injustice or unfairness to him. In any event, the 2nd defendant came under Order 11 Rule 1(1) of the NIC Rules 2007, a provision that simply enjoins parties wishing to file a motion to state the Order under which the motion is brought. This court has severally held that Order 11 Rule 1(1) cannot be used as the authorizing law or rule of court under which a motion is brought. The 2nd defendant cannot, therefore, quote Order 11 Rule 1(1) as its authorizing law or rule of court. This means that the preliminary objection of the 2nd defendant is incompetent ab initio. Consequently, we hold that the preliminary objection of the 2nd defendant challenging the jurisdiction of this court to entertain this suit fails and is hereby dismissed. Regarding the second application in which the claimants pray for leave to amend the name of the 1st defendant to Federal Ministry of Works and an order joining the Nigerian Legion, the 2nd defendant opposed the application on points of law and then filed a written address. This court had suo moto raised the issue of whether the Federal Ministry of Works is a juristic person capable of suing and being sued. The claimants’ counsel did not address this issue in his written address in support of his application. Instead, he addressed it in his reply on points of law, thereby depriving the 2nd defendant of his right of response. For this reason, the claimants’ written submission on this issue is hereby discountenanced. In the agreement sought to be enforced by the claimants, ‘The Minister, Federal Ministry of Works & Housing’ is referred to as ‘Employer of the second part’ yet the claimants seek to amend the name of the 1st defendant to read ‘Federal Ministry of Works’. Since the claimants have not shown any nexus between the Federal Ministry of Works and their claims, there is no basis to accede to their prayer in that regard. It is for this reason we refuse prayer 1 on this application. In respect of the prayer for an order joining the Nigerian Legion as a co-claimant, the consideration is whether the Nigerian Legion is a necessary party whose presence will enable the court effectually and completely adjudicate upon and settle all questions thereby avoiding a multiplicity of suits. See Ige v. Farinde [1994] 7 NWLR (Pt. 354) 42 and In Re: Yusufu Faleke (Mogaji) [1986] 2 SC 431 at 449. Paragraphs 1, 4, 7, 8, 14 and 15 of the statement of facts reveal that the Nigerian Legion is a necessary party having a similar pecuniary interest and being a signatory to the agreement sought to be enforced. We, however, note that the claimants in seeking this joinder have not shown the court that the Nigerian Legion has given its consent to being made co-claimants in this action. In this regard, we are guided by the Supreme Court decision in Fadayomi v. Sadipe & ors [1986] 1 NSCC 570 at 577 per Karibi-Whyte, J.SC: The general principle is well settled that a person cannot be made a plaintiff in an action without his consent. But this general principle is subject to the principle to prevent multiplicity of actions. Hence where persons have the same interest in an action, they could join as plaintiffs. This joinder is more commonly granted where the parties have similar right to relief in respect of the same injury arising out of the same transaction or series of transactions, whether jointly, severally or in the alternative. On the authority of this decision, therefore, the claimants’ application for joinder must fail. It is accordingly dismissed. For the avoidance of doubt, we hold that this court has jurisdiction to hear and determine this case. The prayers of the claimants for amendment and joinder all fail and are accordingly dismissed. Ruling is entered accordingly. We make no order as to costs. ………………………………. Hon. Justice F. I. Kola-Olalere Presiding Judge ........….……………………………. ………………………….……… Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J.T. Agbadu-Fishim Judge Judge