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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP …… HON. JUSTICE B.A. ADEJUMO, OFR (PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA) DATE: 5TH JUNE, 2012 SUIT NO. NIC/ABJ/85/2011 BETWEEN: MR. MGBODILE CHRISTIAIN ANAYO …………CLAIMANT/RESPONDENT AND THE CHAIRMAN FEDERAL CIVIL SERVICE COMMISSION...DEFENDANT/APPLICANT REPRESENTATION: Mr. E.O. Abadaki for the Claimant/Respondent. Ajah F.A. (Mrs.) State Counsel with Miss Uche Chikwem for the Defendant/Applicant. RULING The suit leading to this application was commenced at the High Court of the Federal Capital Territory, Abuja on the 21st day of February, 2002 and judgment on it was entered on the 22nd of November, 2004. It is the enforcement of part of the said judgment that is the subject of the present application. Originally, the defendant/applicant had filed Motion on Notice seeking for a prerogative order of mandamus to compel the Chairman, Federal Civil Service Commission to regularize the placement of the applicant in accordance with the judgment of the High Court of the FCT, Abuja at the High Court, FCT, Abuja (see Exhibit “L” attached to the Respondent’s Counter Affidavit). However, the High Court of the FCT, Abuja via Hon. Justice M.N. Oniyangi before whom the application was, raised the issue of jurisdiction of the court in view of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 (Third Alteration Act, 2010). Counsel on both sides addressed His Lordship on this and His Lordship delivered a ruling on the 31/10/2011 to the effect that the Court lacked jurisdiction to entertain the application. His Lordship therefore struck out the application in view of the fact that the Rules of the High Court of the FCT, Abuja did not contain provisions for transfer of cases to other courts (see exhibit “L” attached to the Respondent’s Counter Affidavit supra). Thereafter, the applicant filed another application before this Honourable Court by way of General Form of Complaint on the 21st of November, 2011 seeking for an: (1) An order of Mandamus compelling the Defendant to effect the proper placement of the Claimant on the post of Assistant Director (Administration), Salary Grade Level 15 with effect from 1st January, 2010 pursuant to an order of the High Court of Justice FCT, Abuja. (2) An order of enforcement of the ruling, order and or judgment of the High Court of Justice, FCT, Abuja, delivered on 22/11/2004 by Hon. Justice S.E. Aladetoyinbo in suit Number FC/HC/CV/906/2000. (3) And for such order or relief or further orders that this Honourable Court shall deem fit to make in the circumstances of this matter. This General Form of Complaint is accompanied with a Statement in Support, List of Witness, List of Documents to Rely Upon, a Motion on Notice with attached exhibits and the Claimant’s/Applicant’s Written Address in Support of the Application, all filed together with the General Form of Complaint on the 21st of November, 2011. On the 19th of January, 2012, the Chairman, Federal Civil Service Commission as the Defendant to the action filed a Motion on Notice dated the 18th of January, 2012 through his Counsel asking that the suit be struck out for disclosing no reasonable cause of action. This application is supported by an affidavit in support and a Written Address of the Defendant/Applicant. It is this application, which is in essence a preliminary objection to the case of the Claimant, which is now the subject matter of this ruling. The Claimant as the Respondent filed a Counter Affidavit dated 30th January, 2012 with attached exhibits to the Applicant’s Motion on Notice on the same 30th of January, 2012. And this Counter Affidavit was accompanied with a Written Address in Support of Counter Affidavit. On the 17th January, 2012 when the case up for hearing the Respondent’s Counsel was not in Court and the matter was further adjourned to the 1st of February, 2012 for hearing. The case was however heard on the 21st of February, 2012; and thereafter adjourned for ruling on the preliminary objection. However, when the matter came up for ruling on the 27th March, 2012, the Court suo motu raised the issue of whether it has jurisdiction to enforce the judgment of the FCT High Court delivered on the 22/11/04 in view of section 254C of the 1999 Constitution as altered and section 24 (5) & (6) of the National Industrial Court Act, 2006 (NICA 2006); and the authority of OBIUWEUBI V. C.B.N. (2011) 7 NWLR (PT. 1247) 465. The Court therefore ordered parties to file written addresses on this issue. Pursuant to the Court’s order, the Claimant’s Counsel filed his Written Address, dated the 2nd of April 2012, on the 3rd of April, 2012. Consequently the Defendant/Respondent’s Counsel filed his written address, dated the 13th of April 2012, on the 16th of April, 2012. Thereafter, the Claimant’s Counsel filed his reply on points of law which is dated the 17th of April, 2012 on the 18th of April, 2012. The parties through their respective Counsel adopted their written addresses on the 23rd April, 2012. Being that the issue raised by the Court is one touching on its jurisdiction, it shall be taken first. It is pertinent to observe that the Counsel to the two parties saw, in the order of the Court to address it on the issue of whether it has jurisdiction to enforce judgment entered by another court at a time when it lacked jurisdiction on the subject matter, another opportunity to readdress the Court on the issues which they had earlier canvassed in their written addresses on the Preliminary Objection. I shall therefore not bother myself reviewing such arguments here, which I shall review in their proper places. I shall limit myself only to the arguments germane to the issue on which they were ordered to address the Court on. Counsel to the Claimant has argued that by virtue of sections 105 and 108 of the Sheriffs and Civil Process Act, CAP. S. 6, Laws of the Federal Republic of Nigeria (LFN), that a judgment once registered in a court as provided becomes enforceable in that court irrespective of the fact that it is the judgment of another court. He submitted that the National Industrial Court of Nigeria (NICN) is a court of like jurisdiction to the High Court of the FCT, Abuja and that therefore it has jurisdiction to enforce this judgment. He submitted that the date of the judgment is immaterial in that section 112 of the Sheriffs and Civil Process Act supra contains transitional provisions that save judgments irrespective of the date of delivery. He also relied on section 287 (3) of the 1999 Constitution as altered which he argued enjoins all courts and authorities to enforce a judgment irrespective of whether the judgment emanated from another court. He also submitted that by virtue section 17 (1) & (2) of the NICA 2006 the Court has the power make an order of mandamus. He also submitted that the Court is vested with jurisdiction to enforce the judgment by virtue of section 254C (1) & (4) of the 1999 Constitution as altered. He submitted in respect of the authority of OBIUWEUBI supra raised by the Court that the issue of before this is not one for trial or determination and that since the issue before the Court is one for enforcement, the authority is therefore irrelevant. He finally urged the court to enforce the judgment as prayed. The Defendant/Respondent’s Counsel in his written address in response to the address of Claimant’s Counsel argued that sections 105, 107, 108, and 112 of the Sheriffs and Civil Process Act relied upon by the Claimant to argue that this Court can enforce the judgment in question are in conflict with the provisions of section 1 (1)(3) of the 1999 constitution as altered and are therefore void. He relied on the authority of Labintan v. Annetiola. He also submitted that the Claimant did not serve the defendant with any hearing notice in the action and that therefore, the Court’s jurisdiction is negatively affected. He relied on Obimonure v. Erinosho (1996) 1 ALL NLR and Okafor v. A.G. Anambra State (1991) 7 S.C. (Pt. II) 138. He submitted in respect of section 287 (3) of the 1999 Constitution relied upon by the Claimant’s Counsel that he misapprehended the purport of the sub-section. He argued that the real purport of the section which is very obvious on its face is that it conceives of a situation where the decisions of a court would be enforced by the court itself or courts of subordinate jurisdiction; and that the NICN is not a subordinate Court to the High Court or Federal High court. He submitted further that when the words of a statute are clear as in this case it must be given their ordinary interpretation – he cited Agbareh & Anor v. Mimna & 2 Ors (2008) 1 S.C. (Pt. 111) 146. He also submitted that the express mention of one thing is the exclusion of another. In respect of section 17 (1) & (2) of the NICA 2006 relied upon by the Claimant’s Counsel that he conceded that the court can issue an order of mandamus. He however argued that such an order can only be issued upon a prior order, decision or judgment of the Court and not on the judgment of another court. He further argued that the Third Alteration Act had not been in existence as at the time the judgment in question was delivered. He submitted that for this judgment to be enforced recourse must be had to the High Court of the FCT Civil Procedure Rules and that the law in force as at the time a cause of action arose would be the applicable law – he relied on Jallo ltd v. Owoniboya Tech. Services Ltd. (1995) 4 NWLR (Pt. 391) 547. He also argued that the provisions of section 254C of the 1999 Constitution relied upon by the Claimant’s Counsel are totally irrelevant to the issue at hand; and that as such the Counsel’s arguments amount to academic exercise. He further argued that most of the arguments of the Claimant’s Counsel did not relate to his affidavit and that Counsel address cannot amount to evidence however brilliant it might be – he relied on Tapchang v. Lakuet (2000) 13 NWLR (Pt. 684). He urged the court not to take cognizance of the repetitive argument of the Claimant’s Counsel – Calabar East Cooperative Thrift and Credit Society Ltd. V. Etim E. Ikot (1999) 12 S.C. (Pt. 11) 33. He finally urged the Court to strike out the case. In the Claimant’s Counsel’s reply on points of law he argued that the issues formulated by the Respondent are at variance with the issues raised and distilled by the Court for address. He argued that this amounts to disobedience to the order of the Court. He relied on Asaboro v. Arowaji (1974) 6 S.C. 31. He replied that there is no inconsistency between the provisions of sections 105, 107, 108 and 112 of the Sheriffs and Civil Process Act cited by him and the provisions of section 36 of the 1999 Constitution. He replied to the argument of Claimant’s Counsel that the phrase “all other courts established by the constitution” contained in section 287 (3) of the 1999 constitution as altered includes the NICN contrary to the submission of Counsel and that what applies to the Federal high Court applies mutatis mutandis to the NICN. Firstly, the issue that falls for determination here is whether this Court has jurisdiction to enforce the judgment in question in view of section 254C of the 1999 Constitution as altered and section 24 (5) & (6) of the National Industrial Court Act, 2006 (NICA 2006); and the authority of OBIUWEUBI V. C.B.N. (2011) 7 NWLR (PT. 1247) 465. In resolving this issue based on the arguments of Counsel to the two sides, the important points to consider are sections 105, 107, 108 and 112 of the Sheriffs and Civil Process Act supra and section 287(3) of the 1999 Constitution as altered. All other points are ancillary to these. The Claimant’s counsel has argued that by the combined effects of these sections, the NICN shall have jurisdiction to enforce the judgment irrespective of the fact that the judgment emanated from another court. This has been countered by the Respondent’s Counsel, saying that the NICN is not a Court of subordinate jurisdiction to that of the High Court of the FCT and can therefore not enforced its judgment; and that the provisions of the Sheriffs and Civil Process Act contradict section 1 (3) of the 1999 Constitution as altered. In the first instance, with the greatest humility I disagree with this argument of the learned Counsel to the Respondent. I cannot in all honesty find any contradiction or inconsistency between the provisions of the Sheriff and Civil Process Act and section 1 (3) of the 1999 constitution as altered. Section 1 (3) of the 1999 Constitution only states the effect of contradiction between any law and the Constitution. The Counsel has not therefore indicated the particular section of the Constitution infringed. Having settled this, the next port of call is what combined effects have sections 105, 107, 108 and 112 of the Sheriffs and Civil Process Act supra and section 287(3) of the 1999 Constitution as altered? Sections 105, 107, 108 and 112 of the Sheriffs and Civil Process Act clearly provide in unambiguous manner that a court of law in Nigeria shall have the jurisdiction to enforce the judgment of another court just like its own judgment provided some precedents are met. This appears to have been in consonance with the provisions of section 287 (3) of the 1999 Constitution as altered which enjoins all authorities and persons to enforce the judgments of all courts created by the 1999 Constitution. Definitely these authorities and persons include other courts than the court from which the judgment emanated. These authorities, of course, include the NICN. Contrary to the submission of the Respondent’s Counsel, the clause “…, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other courts, respectively” must be read disjunctively to the previous parts of the sub-section as it is separated by comma. And it cannot by any stretch of imagination refer to the NICN; otherwise the NICN would not have been mentioned again in the clause. It simply refers to other courts of subordinate jurisdiction to the courts listed in earlier part of the clause. The NICN therefore has jurisdiction to enforce the judgment of another court. Now having settled the issue that the NICN can enforce the judgment of another court, the next issue is whether in trying to enforce this judgment the conditions precedent to the exercise of this jurisdiction has been complied with in this particular instance? The Claimant’s Counsel has submitted that he has eminently complied with these conditions. What are these conditions precedent? Section 104 of the Sheriff and Civil Process Act supra gives to any person who has a judgment in his favour the right to obtain from the Registrar of such court which gave the judgment a certificate to that effect. Upon production of this certificate before any other court, section 105 of the Sheriffs and Civil Process Act enjoins such courts of like jurisdiction to register it and that upon registration the certificate shall become a record of such court which shall have the same force and effect as a judgment of the court; and that like proceedings could be taken to enforce it by the judgment creditor. This power is further reinforced by section 108 of the same Act. By virtue of section 254D (1) which gives the NICN all powers of a High Court and since appeals from the NICN go to the Court of Appeal like that of any High Court, the NICN is therefore a Court of like jurisdiction to the High Court; and definitely a Court of co-ordinate jurisdiction. Now, a close perusal of the processes by which this case was initiated and all other processes in that behalf did not reveal that any certificate as contemplated by section 104 of the Sheriffs and Civil Process Act was obtained by the Claimant. There is also no evidence that the certificate was registered with the registrar of this Court as contemplated by section 105 of the Sheriffs and Civil Process Act. It is only when these conditions precedent are complied with that the issue of enforcement before such court can arise. What the Claimant has done here is to file processes to initiate mandamus proceedings, no more, no less. On this note, the Court shall lack the jurisdiction to entertain this action; the conditions precedent to enforcing the judgment of one court in another not having been met in this case. I therefore so hold. As the issue of mandamus is an entirely different issue not based on the above premise; and since I have held that this Court has the jurisdiction to entertain application for the enforcement of the judgment of other courts; I am bound to consider the mandamus application in its own merits. This is because it is another means by which a judgment could be enforced. On this I am more strengthened in case my decision on the issue of jurisdiction earlier considered turns out to be wrong. I now turn to the substantive application before the Court, that is, the Preliminary Objection filed by the Defendant/Applicant to the mandamus. The Defendant/Applicant’s Counsel adopted his Written Address on the 21st of February, 2012 and made oral adumbration which is essentially a repetition of the arguments contained in the written address. In arguing his application in the Written Address, the applicant’s Counsel formulated two issues for the determination of the application which run thus: 1. Whether this Honourable Court can be invited to adjudicate in respect of issue(s) placed before it though the party sought to be adjudicated against was not made a party in the earlier proceeding that gave rise to this proceeding thereby denying the party fair hearing thereby violating the rule of audi alterem partem. 2. Whether the case of the Respondent is not academic, hypothetic and speculative taking consideration of the circumstance surrounding this case and therefore constitute abuse of court process. (sic) Essentially, the argument of the Applicant on issue one is that since the Defendant/Applicant (the Chairman, Federal Civil Service Commission) was not made a party by the Claimant/Respondent at the trial Court, that is at the High Court of the FCT, Abuja where the judgment sought to be enforced was obtained, it would amount to a denial of fair hearing to now enforce such judgment against a party who was alien to the proceedings at the trial Court, since the party was never heard. The applicant relied on the Constitution of the Federal Republic of Nigeria 1999 and the authorities of Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490), and etcetera for this submission. He submitted further that once a person was not a party to a suit, just as such person cannot claim any benefit from the suit, he cannot also be made to obey the judgment from the suit. He relied on Plateau State v. A.G. Federation (2006) ALL FWLR (Pt. 305) 601. He argued further that this Honourable Court cannot entertain the application of the Respondent for mandamus as there was no foundation for it (no authority was cited). On issue two, he argued that the case of the Respondent is academic as the mandamus proceedings made empty sound. He relied on Odedo v. INEC & ORS (2008) 7 S.C. 57 and a host of other authorities. On this issue, he also submitted that the mandamus proceedings amounted to an abuse of court process in that it was designed to harass and annoy. He relied on Alade v. Alemuloke (1988) 1 NWLR (Pt. 69) 207 and some other cases. Finally, he tried to distinguish the authority of Shitta-Bay v. Federal Public Service Commission (1981) NSCC 19 relied upon by the Respondent for the propriety of the mandamus application by saying that in the Shitta-Bay’s Case, the plaintiff properly joined the respondent at the trial court unlike in the present case where the respondent was not joined at the trial court. He finally submitted that the applicant cannot be said to have a duty to perform in the absence of a prior direct order of court enjoining it to perform an act. He thereafter urged the Court to strike out the case with substantial costs. On the same 21st February, 2012, the Respondent’s Counsel (that is the Claimant in this case) also adopted his own Written Address in opposition to the application asking that the suit be struck out. His adumbrations added nothing to the Written Address. The Counsel to the Respondent formulated two issues for the determination of the case, and they go thus: a. Whether the honourable court has the power to entertain the suit and grant the reliefs sought. b. Whether the Applicant can be compelled by order of mandamus to obey the order of court in Suit No: FCT/HC/CV/906/2000 or whether the honourable court can effectively and effectually adjudicate upon the subject matter of this proceedings.(sic) The gist of his argument as could be distilled from the Written Address is that there is a subsisting judgment of court which is enforceable by virtue of the Sheriffs and Civil Process Act, CAP. S16, Laws of the Federation, 2004 and the Judgment (Enforcement) Rules, CAP. 407, Laws of the Federation, 1990. He also submitted that the applicant is wrong to say the trial Court lacked jurisdiction at the time its judgment was delivered. He also submitted that a judgment of a court can be enforced against any person even though not a party to the suit in question; and on this he relied on section 16 of the Sheriffs and Civil Process Act. The Respondent’s Counsel also argued that the failure of the applicant to comply with the order of the Court amounts to a breach of the Respondent’s right under section 42 of the Constitution of the Federal Republic of Nigeria, 1999. He also submitted that the Respondent cannot file another suit to compel obedience to a judgment against the applicant who has partially complied with or carried out part of the judgment. He went further to say that mandamus is the proper procedure to compel obedience in this respect. And he relied on Shitta-Bey v. Federal Public Service Commission (1981) NSCC 19 and some other authorities. He also argued that by virtue of the powers conferred on this Court by section 254C (1) – (4) it has the power to enforce the judgments of courts. He finally urged the Court to grant the reliefs of the respondent. In his reply on points of law, the applicant’s counsel urged the Court to disregard the case of Shitta-Bey cited by the Respondent. Before delving into the merits of this application, let me make a passing remark. I have observed that the Respondent cited both the 1990 and 2004 editions of the Laws of the Federation on the Sheriffs and Civil Process Act in respect of the same issue and also CAP. 407 and CAP. S16 respectively – see p. 4 of the Respondent’s Written Address. I also observed that the Respondent referred to section 16 of the Sheriffs and Civil Process Act. I must say counsel must take pains to cite laws correctly. With the coming into force of the 2004 edition of the Laws of the Federation, a counsel has no duty citing the 1990 edition which is no longer current. Also, the Sheriffs and Civil Process Act is not in CAP. S16 of the 2004 edition of the Laws of the Federation but rather in CAP. S6. Thirdly, the provision quoted at p. 5 by the Respondent’s Counsel as emanating from section 16 of the Sheriffs and Civil Process Act could not be found in both the 1990 and 2004 editions of the Laws of the Federation. The provision correctly emanates from Order II, Rule 16 of the Judgment (Enforcement) Rules made pursuant to section 94 of the Sheriffs and Civil Process Act, CAP. S6, Laws of the Federation, 2004. I have carefully read the addresses of Counsel to the two parties and all the authorities cited by them. I have also carefully gone through the issues formulated by them. I must say straight away that in my humble view, none of the issues formulated by the parties is relevant to a just determination of crux of this matter. I therefore proceed to formulate the issue which in my humble view I think squarely addresses the crux of the matter at hand. The issue is: Whether, bearing in mind the circumstances of this case, particularly with regard to the doctrine of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 and Order II, Rule 16 of the Judgment (Enforcement) Rules made pursuant to section 94 of the Sheriffs and Civil Process Act, CAP. S6, Laws of the Federation, 2004, the judgment in issue can be enforced against the Applicant who was not made a party to the case in which the judgment was obtained? To my mind, that is the sole question to resolve. First, I must say that the Respondent misconstrued the argument of the applicant by saying the applicant argued that the trial court lacked jurisdiction to entertain the matter. I have combed through the gamut of the applicant’s arguments and I cannot find any such argument. The Respondent has argued that the Applicant is compellable by mandamus to fully implement the judgment of the Court and heavily relied on the case of Shitta-Bey supra. The Applicant has distinguished this by showing that at the High Court where the case was tried that the Federal Public Service against which mandamus was sought was actually joined as a party and that consequently when it failed to obey the judgment which was against it, mandamus was properly issued against it. I have carefully read this authority and cannot but agree with the learned Counsel for the Applicant that the authority does not tally with the case at hand. Throughout the trial of the case at hand at the High Court of the FCT, Abuja and till judgment was obtained in the case, the Chairman, Federal Civil Service Commission was never made a party. It was only at the point of enforcement that he was made the sole party. This fact is not in dispute between the parties; and since they are in agreement on this we need not belabour it. However, the crux of the matter as formulated earlier on, seems to me to be that whether irrespective of this omission, the judgment could still be enforced against the Chairman, Federal Civil Service Commission? The Respondent has relied on Order II, Rule 16 of the Judgment (Enforcement) Rules made pursuant to section 94 of the Sheriffs and Civil Process Act to say a judgment could be enforced against any person whether or not he was a party to the suit. To this the Applicant has argued that this would offend the doctrine of fair hearing. In answering this question, I wish to first draw attention to the effect of entrenching the doctrine of fair hearing into the Constitution of the Federal Republic of Nigeria, 1999 as altered. The Supreme Court has admirably stated this in the case of Unibiz (Nig.) Ltd. V. C.B.C.L. Ltd (2003) 6 NWLR (Pt. 816) 402 at 433-434, paras. H-A, in the following words: It must always be borne in mind when English decisions on fair hearing are considered that in Nigeria, the right to fair hearing is a right entrenched in the Constitution whereas in England it is a creation of the common law which is regulated by the Rules. The effect of entrenching a provision in the Constitution is that it overrides all contrary provisions in the law of the land, be they substantive or adjectival. (Bold type for emphasis) In this same case, the Supreme Court has also clearly listed the basic criteria and attributes of fair hearing, which it held, included: (a) that the courts shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case; (b) that the court or tribunal shall give equal treatment, opportunity and consideration to all concerned; (c) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and (d) that having regard to all the circumstances, in every material decision in the case, justice must manifestly and undoubtedly be seen to have been done. (see pp. 432-433, paras. D-B) In this same case, the Supreme Court firmly held that where a party is not put on notice before an interlocutory order was obtained against him the order would be nugatory for offending the provisions of section 36 of the 1999 Constitution as altered – see pp. 433, paras. D-H; 436, paras. E-F. What is more, the present case is a case in which substantive matter was heard to conclusion and judgment obtained without joining a proper party nor putting the very vital party on notice. Based on the above authority, I have no hesitation in agreeing with the applicant’s Counsel that failure to join the respondent in this case, that is the Chairman, Federal Civil Service Commission, amounts to denial of fair hearing as paragraphs (a), (b) and (d) of the prerequisites of fair hearing as adumbrated above have been infringed. Assuming that mandamus would ordinarily lie in this situation, the effect of section 36 of the 1999 Constitution as altered is to make any contrary proposition of law subservient to the Ground Norm which the 1999 Constitution as altered is. The same thing goes for Order II, Rule 16 of the Judgment (Enforcement) Rules made pursuant to section 94 of the Sheriff and Civil Process Act which provisions cannot be read to defeat the cardinal provisions of section 36 of the 1999 Constitution as altered. What is more, the Supreme Court has held in the case of A.-G., Fed. V. ANPP (2003) 18 NWLR (Pt. 851) 182 at 211, paras. B-D that: The outcome of litigation by way of judgment binds only parties. A judgment will not bind other persons who are not parties thereto. Similarly, courts of law only make enforceable orders, and like nature, they do not act in vain. See also the case of N.E.C v. Izuogu (1993) 2 NWLR (Pt. 275) 270 at 295 paras. C-D. and the case of Alfa v. Atanda (1993) 5 NWLR (Pt. 292) 729 at 739-740, paras. F-C where the Court of Appeal held that: The principle of audi alteram partem is one of the pillars of natural justice. This means that a court or judicial tribunal is enjoined to hear the other party to a dispute. This principle is enshrined in section 33 of the Constitution of the Federal Republic of Nigeria, 1979. It is good logic and good sense, as it provides that any person whose rights and obligations may be affected by a decision of a court or tribunal must be given an opportunity to present his own side of the case before a decision affecting him is made, thereby ensuring that all parties who are to be affected in any way by a decision of a court or tribunal are accorded ample opportunity of being heard before that court or tribunal. Anyone whose presence is crucial and fundamental to the resolution of a matter before the court must be made a party to the proceedings. (Bold type for emphasis) The Court of Appeal went further to say in the above-cited case that you cannot recover against a person that was not joined as a party even if he were to be the principal of the tortfeasor – see p. 747, paras. B-E. And in this case, the parties joined at the trial court are not even the agents of the present party against whom the judgment is now sought to be enforced. This makes the case of the Claimant/Respondent even worse. In this particular case, there is no allegation that the present Respondent was aware when the suit was filed in court and never asked to be joined. So the doctrine of standing by would not apply. In any case, this is not even an issue in the case. The mere fact that he had partly complied with the judgment of the trial Court does not detract from the fact that he was not made a party to the suit, yet he was a very necessary party and he ought to have been joined as an important party to the suit. As we have seen from paragraphs 20, 21, and particularly 25 of the Applicant’s Affidavit wherein it was averred that the regularization of the Claimant/Respondent’s appointment was in the first instance invalid, there were issues which the applicant could have raised in the suit which he was not afforded the opportunity to raise before the judgment was passed. Thus, the applicant has been denied fair hearing. It needs to be borne in mind that none of the documents the respondent attached to his Originating Summons and the Counter Affidavit as the bases of his claims at the High Court of the FCT, Abuja bear the imprimatur of the Applicant or rather the Federal Civil Service Commission. The applicant only came into the picture at the point of enforcement of the judgment. In my humble view, the Sheriff and Civil Process Act and mandamus do not relief a plaintiff or claimant or applicant as the case may be of the cardinal responsibility of bringing before a court a necessary party to a suit. Otherwise, a dangerous precedent would be set whereby a person can deliberately go behind a necessary party to obtain judgment which he had reason to know he might not have been able to obtain had the necessary party been put on notice because of the nature of defence which the necessary could have adduced. It is to prevent this sought of weird situation that the law in its wisdom made it compulsory that a necessary party must be joined in an action for the judgment of the court to be binding on him. The whole purport of Order II, Rule 16 of the Judgment (Enforcement) Rules made pursuant to section 94 of the Sheriffs and Civil Process Act, in my humble view, is to make parties, who have no interest in a case and whose interest or right is not affected in any way but who are in a position to ensure compliance with the performance of a judgment, compellable. For example, where a judgment debtor has some money with a bank, the bank, even though not a party to the case, can be compelled to release the money to the judgment creditor: that is, such money can be attached in satisfaction of the court’s judgment. In the same way, tenants living in a land adjudged by court to belong to another person who is not their landlord are compellable to vacate the land. In these two instances, the judgments of courts are enforced against non-parties to the suits. I now come to the issue of section 42 of the 1999 Constitution raised by the Respondent’s counsel which, he claimed, is being infringed by the applicant’s failure to completely comply with the judgment of the Court. Section 42 of the 1999 Constitution as altered prohibits discrimination against citizens of Nigeria on the basis of some itemized factors. My perusal has not shown that any of the listed factors has been breached in this case and neither has the Respondent’s Counsel shown in what material instance the section has been breached. The simple logic in this case is that a very important and necessary party was not joined to the suit culminating in the judgment sought to be enforced, period! We therefore need not split further hairs on the issue of whether mandamus and the Sheriffs and Civil Process Act give succor to the respondent. Having come to this juncture, I have no hesitation in holding that the application succeeds. The case of the Claimant/Respondent is accordingly struck out. Cost is not awarded. …………………………………………….. Hon. Justice B.A. Adejumo, OFR President, National Industrial Court of Nigeria