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JUDGMENT This is a matter referred by the Hon. Minister of Labour and Productivity vide an instrument dated 9th February 2011 with a covering letter also dated 9th February 2011 with reference ML.HE/956/CON/1/16 and acting pursuant to section 14(1) of the Trade Disputes Act Cap. T8 LFN 2004. By the referral instrument, the following issue is in dispute: To inquire into the trade dispute now existing between the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) and Belbop-Conoil Nigeria Limited over the violation of Labour-Management Agreement reached at the instance of the Honourable Minister of Labour and Productivity. Before the Industrial Arbitration Panel (IAP), the appellant, as first party, had contended that the communiqué issued on 8th October 2007 at the end of a meeting between PENGASSAN, NUPENG and Belbop Management is a collective agreement enforceable by the parties. In particular, the appellant sought to enforce paragraph 12 of the communiqué which is as follows: That based on the union strong demand for the retention of all union executives in the service of the company, management made strong commitment to ensure that as many of the union executives as possible will be retained after the severance exercise. The respondent as, second party, contended that the communiqué is not a collective agreement and that paragraph 12 does not constitute an enforceable agreement between the parties. Furthermore, that the union executives the first party was seeking to be reinstated, having collected their severance package and left the service of Belbop Management, cannot be reinstated. Attached to the referral instrument is the appellant’s letter of objection to the IAP award as well as the IAP award itself. The summary of the award is as follows: Consequently, the first party’s declaration that the second party is bound by its obligations contained in paragraph or clause 12 of the collective bargaining agreement communiqué of October 8, 2007 cannot hold and therefore the second party is not in all terms bound by the aforesaid communiqué. And that members of the Belbop branch executive committee who were affected by the reorganization exercise cannot be recalled back after they have willingly collect (sic) their benefit and entitlements in full and collected their severance letter of retrenchment without any hue and cry. The appellant on 15th March 2011 filed its brief of argument together with the record of appeal made up of certified true copies of memoranda exchanged between the 1st and 2nd parties and the award of the Industrial Arbitration Panel (IAP). The respondent filed a notice of preliminary objection dated 2nd June 2011 together with its brief of argument on 10th June 2011. The appellant's reply to the preliminary objection is dated August 30, 2011 but filed on 6th September 2011. Its reply on points of law to the respondent’s brief is dated 13th February 2012 but filed on 16th February 2012. The respondent’s reply on points of law to the appellant’s submissions on the preliminary objection is dated 20th February 2012 but filed on 21st February 2012. The parties adopted their respective addresses. The appellant framed two issues for determination as follows: 1. Whether Exhibit “A” in the record of proceedings before the tribunal, which is a communiqué dated 8th day of October 2007, issued and agreed upon by the appellant and respondent after much deliberation and duly signed by them, constitutes a valid and enforceable contract between them. 2. Whether the parties are bound by the terms of the contract contained in the communiqué in issue one above. Learned counsel to the appellant submitted that at the IAP hearing, there was evidence of a valid contract agreement between the appellant and respondent as contained in the communiqué; that the meeting leading to the issuance of the communiqué was at the instance of the Honourable Minister of Labour and Productivity and the parties knew they would be legally bound by the agreement and that the appellant suspended the industrial action in compliance with paragraph 13 of the said communiqué. He submitted that it is an error of law for the IAP to hold that clause 12 is not binding. He submitted that for a contract to be valid, there must be offer, acceptance, consideration, consensus ad idem and intention to create legal relations and that these are present in the communiqué. He cited Omidiji v. Federal Mortgage Bank [2002] FWLR (Pt. 103) 393 at 408, Nigerian Dynamic Ltd v. Aguocha [2002] FWLR (Pt. 104) 630 at 647. He argued that the court or tribunal is bound to give expression to the contract between the parties regardless of the name the parties give to their contract or document in which the contract lies, and submitted that the communiqué constitutes a valid contract in law between the appellant and respondent. Learned counsel further submitted that the communiqué is a binding collective agreement relying on section 48(1) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004, section 54 of the National Industrial Court Act 2006 and this Court’s decision in PENGASSAN v. Schlumberger [2008] 11 NLLR (Pt. 29) 164 at especially 183. (We must point out that nowhere in this case did this Court hold that a communiqué is a binding collective agreement as the counsel to the appellant is presently making out in respect of Exhibit A. If anything, this Court in the recent case of PENGASSAN v. Mobil Producing Nigeria Unlimited unreported Suit No. NIC/LA/47/2010 the judgment of which was delivered on March 21, 2012 wondered and stated thus: “How minutes and communiqué of meetings can amount to collective agreement beats our imagination”.) He referred to section 16 of the TDA and section 7 of the National Industrial Court Act 2006 and submitted that this court has the power to interpret and enforce collective agreements. He urged the court to hold that the communiqué is a valid contract and a valid collective agreement binding on the parties with enforceable provisions. Arguing issue 2, learned counsel submitted that when parties agree in a solemn contract, they are to fulfill all the conditions therein faithfully and honestly and to equally honour its terms which they are bound by. He submitted that the court has a duty to enforce the terms when called upon to do so, referring to Isiyaku v. Zwangina [2001] FWLR (Pt. 72) 209 and Osun State Govt v. Dalami (Nig) Ltd [2007] FWLR (Pt. 365) 438 at 468. He argued that it cannot be fair to read a term which is not in the agreement, citing Afro Tech Services Ltd v. Mia and Sons Ltd [2001] (Pt. 35) (incomplete citation), Kioki v. Magnusson [2001] FWLR (Pt. 63) 167 and UBA v. Umeh [1996] 3 NWLR (Pt. 426) 565. It was his submission that a party who induced the other to enter a contract cannot be heard to deny the validity of that contract, citing Okechukwu v. Onuorah [2001] FWLR (Pt. 33) 219 at 231. It was his contention that the respondent having partially complied with the agreement cannot be seen to withdraw from same. He submitted that the IAP wrongly applied the law to the facts of this case. That the law is that an employee cannot be forced on the employer, but where the employer has entered into a contract with the employee (appellant) and made a commitment to reinstate him and the employee has altered his position consequent upon such commitment, the employer is bound to reinstate the employee, any inconvenience notwithstanding. He referred to the said clause 12 of the communiqué and stated that the operative words are “commitment, retained and after.” He referred to various dictionary meanings of these words and contended that clause 12 of the communiqué shows that the respondent made a strong pledge to reinstate or keep members of the appellant in its employment subsequent to the completion of the severance exercise and not otherwise. Learned counsel submitted that in construing the words in a contract, the court must confine itself to the plain words and meaning and construe them in their ordinary sense and literal meaning, citing Isiyaku v. Zwangina (supra), PDP v. INEC [1999] 11 NWLR (Pt. 626) 200 and Ibama v. SPDC [2005] FWLR (Pt. 287) 832. It was the submission of counsel that the severance exercise and the subsequent payment of severance benefit does not foreclose the right of an aggrieved employee to reinstatement neither does it preclude him from complaining. He referred to Management of Dangote Pasta Plant Industry Ltd v. NUFBTE [2009] NLLR (Pt. 37) 26 at 48, Milad Benue State v. Ulegede [2006] 5 NLLR (Pt. 11) 1, Adeniyi v. Governing Council of Yaba College of Tech [1993] SCJ (Pt. 11) 304 and NITEL v. Ikaro [1994] 1 NWLR 350. It was the contention of the appellant that the respondent’s refusal to comply with clause 12 of the communiqué and reinstate the union leaders is due to their union membership and activities contrary to section 9(6) of the Labour Act and as a result of the respondent’s anti-union disposition. Learned counsel finally prayed the court to set aside the award of the IAP and grant the appellant’s prayers as contained in its brief of argument. The respondent filed a notice of preliminary objection contending that the entire proceeding at the Industrial Arbitration Panel and this reference/appeal based on it is a nullity on the following grounds: 1. There is no entity by the name Belbop-Conoil Nigeria Limited, the 2nd party/respondent on record. That being so, the 2nd party on record should be struck out of the proceedings. 2. In effect, there was no second party before the IAP nor is there a respondent before this Court. 3. This Court cannot adjudicate between only one party, namely, the 1st party/appellant by itself, just like the IAP could not arbitrate between the 1st party all by itself. The learned SAN stated that the 2nd party/respondent on record is Belbop-Conoil Nigeria Ltd and that in the entire documents exhibited and filed by the 1st party/appellant before the IAP including the communiqué, no such name appears. He argued that there is no organization or entity known and called Belbop-Conoil Nigeria Ltd and went on to submit that when a legal personality is being sued, it must be in its correct name and not a different name, citing Abubakar v. Yar’Adua [2008] 19 NWLR (Pt. 1120) 1 at 150 and Njemanze v. Shell-BP Port-Harcourt [1966] NSCC 6. He also referred to the case of Iyke Med. Merchandise v. Pfizer Inc [2001] 10 NWLR (Pt. 722) 540 at 555 – 556 for categories of persons who may sue and be sued and Fawehinmi v. NBA (No. 2) [1989] 2 NWLR (Pt. 105) 558, Carlen v. Unijos [1994] 1 NWLR (Pt. 323) 631 and Odife v. Aniemeka [1992] 7 NWLR (Pt. 251) 25 at 38. The learned SAN argued that the respondent, Belbop-Conoil Nigeria Ltd, is not and cannot be said to be a company incorporated under the Companies and Allied Matters Act and that the Court cannot speculate as to the intention of the first party/appellant or the status of the second party/respondent on record, in the face of clear written documents. He cited Bank of Baroda v. Iyalabani Ltd [1998] 2 NWLR (Pt. 539) 600. He further argued that if the name Belbop-Conoil Nigeria Ltd is a mistake, it is fatal to the case of the appellant. It was his contention that the name is not a misnomer as a misnomer occurs when the correct person is brought to court under a wrong name which would be corrected by merely amending the writ of summons and other processes of court to show the correct name, citing Chukweuemeka v. Iwerumo [1996] 9 NWLR (Pt. 472) 327 at 340. He stated that in spite of the fact that the 2nd party/respondent filed and argued this preliminary objection before the IAP, the first party/appellant did not attempt to amend the name of the 2nd party/respondent before the IAP to reflect its true intention if indeed the name of the 2nd party/respondent was written in error. He submitted that this is fatal to its case, referring to Maersk Line & anor v. Addide Investments Ltd & anor [2002] 11 NWLR (Pt. 778) 317 at 359 – 360 and A. B. Manu & Co (Nig) Ltd v. Costain (WA) Ltd [1994] 8 NWLR (Pt. 360) 112 at 121. He argued that although there are two distinct companies known as Belbop Nigeria Ltd and Conoil Nigeria Ltd, the first party/appellant did not pretend to declare a trade dispute against the two companies. That there is serious doubt as to which of the two entities the first party/appellant declared its trade dispute against. He then went on to submit that this is a case of mistake of identity rather than name, where the misnomer clearly vitiates the entire proceedings. The learned SAN submitted that in this instance, the court cannot order the joinder of additional parties because the first party/appellant has not filed an application to that effect and that even if it had, such an application will not avail it as there is no valid 2nd party/respondent before the court and so no person to whom an additional party can be joined as something cannot be put on nothing, citing UAC v. Mcfoy [1962] All ER (incomplete citation). He submitted that there is no 2nd party/respondent before the court only the first party/appellant as a single party to this appeal. He urged the court to strike out the appeal/reference on grounds of incompetence, citing Nigerian Bank for Commerce and Industry Ltd v. Europa Trading (UK) Ltd [1990] 6 NWLR (Pt. 154) 36 at 40. On the substantive appeal, the second party/respondent raised two issues for determination as follows: 1. Whether the IAP was correct in its conclusion that clause 12 of the communiqué dated 8th October 2007 does not amount to agreement between the parties capable of being enforced. 2. Whether the IAP was correct in its conclusion that the employment of members of the appellant having been severed and they having collected their severance pay, the respondent cannot be compelled to restore them back to its employment. The Learned SAN stated that only clause 12 of the communiqué calls for interpretation and went on to submit that any argument relating to other clauses in the document is irrelevant and submissions by the first party/appellant on the prerequisites of a valid agreement together with the authorities cited are inapplicable to this case. He contended that clause 12 of the communiqué is nebulous as it contains no certain term and raises more questions than answers. That simply put, there is no certainty in the “strong commitment” by the management; and if it is a commitment, it is incapable of enforcement. It was his submission that the law is clear that a term of an agreement must be certain and clear for it to be enforceable. He cited Okoebor v. Eyobo Engineering Services (Nig) Ltd [1991] 4 NWLR (Pt. 187) 553 at 556, Alfotrin v. A-G Federation [1996] 9 NWLR (Pt. 475) 634 at 656 – 657 and Green Finger Agro-Industrial v. Yusufu [2002] 12 NWLR (Pt. 835) 488 at 510 – 511. He urged the court to find and hold that there is no agreement capable of being enforced. On issue 2, he stated that paragraphs 1, 8, 9, 10 and 11 of the communiqué show that the affected staff were paid their severance package before they left the employment of Belbop Nigeria Ltd and the court is entitled to uphold the conclusion of the IAP. That all the affected parties had been paid and had collected their terminal benefits and left the service of the company and, therefore, cannot sustain any further claim from the company. He referred to Agoma v. Guinness (Nig) Ltd [1998] 2 NWLR (Pt. 380) 672 at 689, Morohunfola v. Kwara State College of Tech [1990] 4 NWLR (Pt. 145) 506 at 528, Ekeagwu v. Nigerian Army [2006] 11 NWLR (Pt. 991) 382 at 397, SGS Inspection Services Nig Ltd v. PENGASSAN [2005] 4 NWLR (Pt. 9) 140 at 161 and the Black’s Law Dictionary 8th Edition at page 1406 for the definition of severance pay (or package). The learned SAN distinguished the facts in case of Dangote Industries Ltd, Pasta Plant, Ebute, Ikorodu v. NUFBTE (supra) cited by learned counsel to the first party/appellant from this instant case and submitted that the principle enunciated in that case is not applicable. He stated that in the former case, the union executives had their employment terminated as a result of their union activities while in this case, all the workers had to be rationalized due to the declining fortunes of the company. He submitted that the cases cited in paragraph 4.24 of the first party/appellants brief relate to employment with statutory flavor where the determination of employee contracts were carried out in breach of statutory provisions under which they were employed. He cited Adeniyi v. Governing Council, Yaba college of Tech [1993] 6 NWLR (Pt. 300) 426 at 462, Ariori v. Elemo [1983] 1 SCNLR 1 and Milad Benue State v. Ulegede [2006] 5 NLLR (Pt. 11) 1. He finally urged the court to uphold the preliminary objection, or in the alternative if the court is minded to consider the case on its merits, hold that the appellant executive members’ employment having been severed by mutual agreement and having collected their total severance benefits, the respondent cannot be compelled to restore them back to its employment. Replying to the preliminary objection, learned counsel to the appellant stated that the IAP had ruled on this same preliminary objection. He submitted that this suit invokes the appellate jurisdiction of this court and that interlocutory matters already decided by the IAP which have not been objected to or appealed against cannot be entertained by this court. He further submitted that this application is an abuse of court process which should be discountenanced by the court as the ruling of the IAP is not being contested on appeal but being raised afresh on appeal, a matter already decided between the parties by the IAP. He cited Atuyeye v. Ashamu [2009] All FWLR 1770 – 1778 and Olaifa v. Chairman Ibadan North East Local Govt [2009] All FWLR (Pt. 455) 1724 at 1740 and urged the court to dismiss the application. He contended that by Order 9 Rule 2 of the Rules of this Court, the duty or obligation of a party served with a notice of appeal is to contest the appeal or cross appeal. Arguing further, learned counsel stated that assuming without conceding that the respondent can raise this objection, it is the appellant’s submission that there is a “symbiotic relationship between Belbop Nigeria Ltd and Conoil Producing Limited in a seemingly subsidiary relationship by providing consultancy and operational services to Conoil Producing Limited.” He submitted that the reference to Belbop-Conoil Nig Ltd in Exhibit L to the memorandum of the first party and in the instrument of referral as well as the hearing notice of this dispute, is a reference to Belbop Nigeria Ltd and Conoil Producing Ltd jointly and severally and he urged the court to hold that both companies are necessary parties in this suit who should be bound by the outcome of this action, citing Green v. Green [2001] FWLR (Pt. 7) 795. He submitted that the failure of the appellant to sue the respondent in its proper names was a mere misnomer. He argued that misnomer does not lie in giving the name of the wrong person but in mistakenly giving a wrong name to the right person intended to be sued. He explained that this mistake came about as a result of the common management of the two companies and that the identity of the respondent is Belbop Nig Ltd and Conoil Producing Ltd. He went on to submit that the basis for amendment in the case of a misnomer is that the person or thing to which the misnomer relates is in existence but the name is wrongly stated or misnamed. He submitted that an amendment is often readily granted where what is involved is a misnomer. He cited Maersk Line v. Addlide Investment Ltd [2002] FWLR (Pt. 125) 608, Njemanze v. Shell BP Port Harcourt [1966] Vol. 4 NSCC 6, Obasi v. Milkson Establishment (Ind.) Ltd [2005] All FWLR (Pt. 250) 153, Olu of Warri v. Essi [1958] 3 SC 94 and Obike International Ltd v. Ayi Teletronic Services Ltd [2005] All FWLR (Pt. 258) 1359. Learned counsel submitted that where two applications are competing, one seeking to defeat the matter and the other seeking to save it, the court is enjoined to grant the one seeking to save it. He stated that the application for amendment of the name of the respondent is merely descriptive so as to ensure that all relevant facts and necessary parties are before the court. Replying the observation of the respondent that in spite of the fact that this objection was raised and argued at the IAP, the appellant did not amend the name of the second party before the IAP to reflect its true intention if indeed it was an error, he submitted that in its Further and Better Memorandum at the IAP, the first party/ appellant applied for an amendment of the name of the second party/respondent to read Belbop Nigeria Ltd and Conoil Producing Ltd. He finally urged the court to uphold the decision of the IAP dismissing the preliminary objection of the second party/respondent and to order the amendment in the name of the second party/respondent on record to read Belbop Nigeria Ltd and Conoil Producing Ltd. Replying on points of law in respect of the substantive appeal, learned counsel to the appellant submitted that it is trite law that in the interpretation of statutes, instruments and agreements, regard must be had to the entire document. He cited ARTRA Industries Nig Ltd v. The Nigerian Bank for Commerce and Industry [1988] 4 NWLR (Pt. 546) 357 at 375, Agbareh & anor v. NIMR & 2 ors [2008] 1 SC (Pt. iii) 88 at 122 and Martin Scroeder & Co v. Major & Co (Nig) Ltd [1989] 2 SC (Pt. 11) 138. He submitted that parties are bound by what they have agreed and that the courts will uphold the sanctity of the agreements reached by parties, citing Sona Breweries Plc v. Sir Shina Peters & anor [2005] 1 NWLR (Pt. 908) 478 at 489 and National Union of Civil Engineering Construction, Furniture and Wood Workers v. Beton Bau Nigeria Limited & anor [2009] 16 NLLR 106 at 118. He finally submitted that the respondent has made a commitment and must not be allowed to resile from it. In reply to issues of law raised by the appellant in respect of the preliminary objection, the learned SAN submitted that the objection of the respondent relates to jurisdiction which can be raised at any time even for the first time on appeal, citing Federal Housing Authority v. Kalejaiye [2010] 19 NWLR (Pt. 1226) 164 and Sapo v. Sunmonu [2010] 11 NWLR (Pt. 1205) 374 at 393. He submitted that the failure of the appellant to effect the amendment in the name as ordered by the IAP is fatal to its case, citing Maersk Line & anor v. Addide Investments Ltd & anor (supra). He urged the court to dismiss and/or strike out this appeal on the arguments canvassed in respect of the preliminary objection. We have carefully considered the processes filed, arguments, submissions and authorities referred to. We will begin this judgment with the issue of jurisdiction raised by the respondent in the preliminary objection. The respondent’s objection is that there is no entity by the name Belbop-Conoil Nigeria Limited and as such there was no second party before the IAP neither is there a respondent before this court. The issue of jurisdiction can be raised at any stage of the proceedings even in an appeal at the Supreme Court and once the objection is raised, it challenges the competence and legality of the court to entertain the matter. See Abel Isaiah & ors v. SPDC Ltd [2000] 5 SC (Pt. ii) 1 and Obi Eze v. A-G Rivers State & anor [2001] 12 SC (Pt. ii) 21. Therefore, the submission of appellant that this preliminary objection cannot be raised again because it had been raised at the IAP is misconceived. The law is trite that a court can only exercise jurisdiction when: (i) it is properly constituted as regards number and qualification of members on the bench, and no member is disqualified for one reason or another; (ii) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and (iii) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341 and Alhaji Magaji v. Maidorowa Matari [2000] 8 NWLR (Pt. 670) 722. The question which arises is whether or not there is an existing respondent in this suit to enable the court assume jurisdiction. The same question calls for an answer with respect to the proceedings before the IAP. Was there a second party before the IAP? The respondent submitted that there is no organization or entity that bears the name Belbop-Conoil Nigeria Limited and that it is at best a fictitious name. In other words, the respondent is not known to law. For the appellant to prove that the respondent is a juristic person vested with the capacity to sue or be sued, it must prove incorporation by tendering the certificate of incorporation. At the IAP, this same objection was raised by the respondent as the second party therein but was overruled. The certificate of incorporation is not included in the records and so we believe that it was never presented at the IAP. At paragraph 29 of the written address by the appellant in reply to the preliminary objection, the following statement is made: It is, therefore, in the interest of justice that the Tribunal granted the First Party’s (Appellant Respondent herein) application for amendment while striking out the Second Party’s (Respondent/Applicant herein) Preliminary objection. The records do not show that the name of the second party was amended at the IAP. In the referral instrument from the Hon. Minister of Labour and Productivity and the award of the IAP, the name of the second party is Belbop-Conoil Nigeria Limited. The communiqué dated October 8, 2007 which is the subject matter of both this appeal and the proceedings at the IAP, is signed by the Management of Belbop Nigeria Limited, PENGASSAN and NUPENG. The law is that for an entity to claim the right to sue and be sued eo nomine it must be shown that it is vested with that capacity by either incorporation or by a legislation either expressly or by implication. See Iyke Med. Merchandise v. Pfizer Inc [2001] 10 NWLR (Pt. 722) 540, Akas v. Manager & Receiver of Estate of Anwadike [2001] 8 NWLR (Pt. 715) 438. There is no document before us showing that the respondent is in existence as a juristic person. We are, therefore, of the firm view, that at the proceedings before the IAP, the appellant herein as the first party was the only party. There was no second party and we so hold. In like manner we find that the respondent in this appeal does not exist and we so hold. If it existed, and a wrong name was used to describe it, then that would be a misnomer capable of being amended as the appellant prays this court to do. A mistake as to the identity of the party to be sued is not a misnomer which can be put right by amendment. See Obasi v. Mikson Establishment (Ind.) Ltd [2005] All FWLR (Pt. 250) 153 at 164 – 5. In Nigerian Nurses Association v. Attorney-General of the Federation [1981] 11 – 12 SC 1, the Supreme Court observed that the powers of amendment “cannot be used to bring into being what does not exist as no amount of correction can bring a non-existent person into existence, or cloak him with juristic personality”. See also UAC v. Macfoy [1961] 3 All ER 1169. The submission of counsel to the appellant that the reference to Belbop-Conoil Nig Ltd in Exhibit L to the memorandum of the first party and in the instrument of referral as well as the hearing notice of this dispute, is a reference to Belbop Nigeria Ltd and Conoil Producing Ltd jointly and severally for which he urged the court to hold that both companies are necessary parties in this suit who should be bound by the outcome of this action go to no issue and so is not tenable for present purposes. The proceedings at the IAP were, therefore, a nullity. For all the reasons given above, this appeal lacks merit and so is hereby dismissed for want of competence, there being no respondent either at the IAP or in this appeal. We award cost of N25,000 in favour of the respondent. Judgment is entered accordingly. …………………………… Hon. Justice B. B. Kanyip Presiding Judge ........….……………………………. ...………………………….……… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge