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By a Complaint dated and filed 12th October, 2011 the Claimants claimed against the defendants jointly and severally the following: 1. A DECLARATION that having regard to the terms of the Judgment/Ruling of the High Court of Rivers State sitting at Port Harcourt dated 27th day of July 2006 in suit No PHC/200M/2004: PC. Godspower Enoch & Anor V. Commissioner of Police & 2 Ors the Claimants being Supernumerary Policemen (SPY Police) of the Nigeria Police of the 1st Defendant attached to the 2nd defendant are entitled to their benefits, salaries, emoluments, allowances etc. 2. AN ORDER directing the Defendants to pay forthwith to the Claimants the sum of N17, 269, 633.36 (7, 384, 816.68 a piece/ to each Claimant and N2, 500, 000 cost of action) at 21% interest being arrears of or outstanding salaries, benefits, emoluments and allowances of the Claimants falling due since March 2008-December 2010 and January-February 2011 after the payment of the sums embodied in the letter of 2nd Defendant of 3rd March 2008 and cheque serial Nos. HC 55441202 and HC 55441203 respectively and or any current higher or any applicable improved or higher current monthly salaries, allowances, emoluments, and benefits. ALTERNATIVELY 3. AN ORDER directing the Defendants to pay over to the Claimants the sum of N124, 595, 359.52 being Claimants current or any applicable improved or higher current monthly salaries, allowances, emoluments, and benefits inclusive of 15% pay off for the outstanding 24 years service or attainment of the statutory retirement by length of service (effective 2011) to the Defendants. The Complaint was accompanied by a statement of Facts, List of witness, Witness Statement on Oath, list of documents and copies of documents to be relied upon at the trial. The 2nd defendant entered appearance dated 5th December 2011 but filed on 7th December, 2011. Thereafter the 2nd Defendant brought a notice of preliminary objection praying this Honourable court for an order dismissing this suit in limine for the ground that this court lacks jurisdiction to entertain the suit. The notice was supported by an affidavit of three (3) paragraphs. There was also a written address accompanying the said notice of preliminary objection. The Claimants/Respondents equally filed a counter affidavit and a written address in reply to the written address of the 2nd Defendant/Applicant in support of its notice of preliminary objection. The Defendants further filed and served its reply on points of law. Learned counsel to the parties adopted their respective written addresses. 2nd DEFENDANT’S WRITTEN ADDRESS: 2.0 ISSUES FOR DETERMINATION 1. Whether Police Service Commission is a proper/Necessary party in this suit. 2. Whether the Non-inclusion of Police Service Commission as a Necessary party oust the court of its jurisdiction. ISSUE I Whether Police Service Commission is a proper/Necessary party in this suit. The court, in the said ruling being relied upon, per J.M. Kobani, in page 272, last sentence of the second paragraph had this to say; “I therefore hold that they were employees of the Nigerian Police in accordance with the provisions of Section 2 and 18 of the Police Act”. The above is clear and unambiguous that the claimants were the employees of the Nigerian Police force in accordance with Section 2 and 18 of the Police Act. Consequently, by virtue of Section 18 (3) d of the Police Act, the claimants are subject to the provisions of the police Act since pursuant to section 214 of the constitution of Federal Republic of Nigeria 1999, there is no state police known to law but only one Nigerian Police force. It is in deed imperative to emphasize that the provisions of section 22(2), 22(4), 15(1), 17(3), and 9(1 )(c) of the Police Act wittingly left the operational control of the police force with the police service commission. This suffices that appointment, reinstatement, disciplinary control and dismissal of the members of the force are the duties of the police service commission. In every parastatal or ministry that has statutory flavour their must be a commission in charge of the operational control of its members or staff. And wherever there is a dispute connecting to a staff with respect to matters relating to operational control, then the commission should be a party for balance adjudication. More so, when the enabling statute provides for that. The above is trite to have culminated in myriad of cases as below listed: * ADEDEJI V POLICE SERVICE COMMISSION (1967) ANLR VOL 1 @ 7 * FEDERAL CIVIL SERVICE COMMISION V J.O. LAOYE (1989) 4 SC. (Pt II). * SHITTA – BEY V. FEDERAL PUBLIC SERVICE COMMISSION ISLR (1981) P/410 or 1981) 51 SC. • CHIEF THOMAS V. LOCAL GOVERNMENT SERVICE BOARD (1965) NMLR 310. • MICHAEL OGUCHE VS KANO STATE PUBLIC SERVICE COMMISSION (1974) 1 NMLR 128. • NASIR V CIVIL SERVICE COMMISSION KANO STATE (2010) 1-2 S.C 65 • CHIEF THOMAS V. LOCAL GOVERNMENT SERVICE BOARD (1965) In all these cases, the appropriate authority having the operational control of the members or staff were joined in the suit. In the instant case, the appropriate authority in charge of the operational control of the claimants is police service commission upon which the execution of any order of the court in this suit lies should there be any order in favour of the claimants. This is affirmed in the provisions of section 22 (4), 17(3) and 18(4) of the police Ac in so far as the claimants were declared employees of the Nigerian Police Force and are subject to the provisions of the police Act pursuant to section 1 8(3)d of the Police Act. It is thus transparent that the police service commission, the body in charge of the matters in connection with the allegation of the claimants is a proper/Necessary party in this suit and we urge the honourable court to so hold. ISSUE 2 Whether the Non-inclusion of Police Service Commission as a Necessary party oust the court of its jurisdiction. It is an elementary procedure in prosecuting civil claims that all parties necessary for the invocation of the judicial powers of the court must come before it so as to give the court jurisdiction to grant the reliefs sought, See OLORIODE V. OYEBI (1984) 1 S.C.N.L.R. 390. This principle of law was re-interacted in the recent decision of the supreme court, in the case of COTECNA INTERNATIONAL LTD V. CHURCHGATE NIGERIA LTD AND ANOR. (2010) 12 S.C. (Pt II) in the concurring judgment of Adekeye, Jsc at page 185/1 86 thus: “It is trite law that for a court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be the proper parties to whom rights and obligations arising from the case of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the court as it goes to the foundation of the suit in lemine. Where the proper parties are not before the court then the court lacks jurisdiction to hear the suit”. Without saying more, the case of AWONIYI & ORS V. AMORC (2000) 6 S.C (Pt 1) 107 is in total agreement with the above legal assertion. See also IKENE V. ANAKWE (2000) 8 NWLR (Pt. 669) 484, BEST VISION CENTRE LTD V. V.A. C. NPDC PLC (2003) 13 NWLR (Pt.388) 594. It is our submission, respectively that the court lacks jurisdiction in this case since the proper parties on whom lies the obligation as may arise in the suit is not before the court. CONCLUSION We humbly summit that the Police service Commission which is in charge of the operational control of the Nigeria Police force is a proper party in this suit since the Claimants are/were employees of the Nigeria police and subject to the police Act. We submit further, that since a proper party on whom an obligation arising or that may arise from the cause of action attach is not made party, there is then a fundamental defect which robes the court of its jurisdiction and we urge this Honourable court to so hold and dismiss/strike out this suit for lack of jurisdiction. CLAIMANTS/RESPONDENTS’ REPLY WRITTEN ADDRESS 1.0 Introduction/Brief Statement of Facts 1.1 Upon being served the originating processes in this action the 2d Defendant has filed this preliminary objection. 1.2 The facts and salient details of this action are amply as contained in the pleadings and stated in the counter affidavit. 1.3 We adopt as well the facts of paragraphs 1.0 of pages 1 and 2 of the 2nd Defendants written address in support of the preliminary objection. 1.4 It is apt to state that the judgment/Ruling of the Rivers State High Court in suit No. PHC/200M/2004: PC Godspower Enoch & Anor V. Commissioner of Police & 2 Ors coram Justice J.M. Kobani, Judge dated 27/07/06 was never appealed against by the 1 and 2 Defendants and is therefore subsisting: see paragraph 2 (h) of affidavit. 1.5 The Claimants were reinstated by the judgment/Ruling of the High Court aforesaid hence the Defendants particularly the 2 Defendant paid the accrued pre judgment/ruling salaries, entitlements and emoluments to the Claimants immediately after the judgment/ruling. 1.6 Issue for Determination Whether the non joinder of the Police Service Commission is fatal to this suit? 2.0 Legal Argument 2.1 We rely on the processes filed by the Claimants and the paragraphs 1- 5 of the counter affidavit and submit that there is already pleaded a subsisting judgment of a court of competent jurisdiction referred to at paragraph 1.4 above. The judgment is pleaded at paragraph 6 of the statement of facts. At paragraph 7 of the statement of facts, the Claimants pleaded part compliance with the said judgment by the Defendants. Preliminary Objection 2.2 We firstly object and submit that paragraphs 2 (iv), (v), (vi), (vii) and (viii) of the affidavit in support of motion of the 2nd Defendant shows that the matters deposed to therein reveal that they are not facts but unsupportable conclusions of law, legal submissions and argumentative and therefore contrary to the provisions of the Evidence Act and should be struck out. This is because these paragraphs offend sections 115 (1) and (2) (former sections 85 and 86) of the Evidence Act; see Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Part 18) 621, 641 C-G, per Oputa, JSC: ‘Paragraphs 14, 15 and 17 reproduced above offend all known rules relating to affidavits. One of those rules is that “an affidavit shall not contain extraneous matter, by way of objection, or prayer, legal argument or conclusion “. That is the pro vision of Section 86 of the Evidence Act Cap 62 of 1958. Paragraphs 14 to 17 of the affidavit in support of this A-lotion are at best merely speculative and at worst wholly argumentative. They are conclusions which are even not legally valid. They are assumption not borne out by the facts of this case which is the only case now before the court, the facts of which have not even been thoroughly gone into by the trial court. In such a situation, is it not highly presumptuous of a mere Litigation Clerk to assume the role of judge and jury and pronounce on ‘illegally’ “forcibly breaking in and taking over the property of another, ‘illegal occupation” and ‘legalizing an illegally” etc? I wonder and my wonder grows even more apprehensive, when one recalls that by the mandatory provisions of Sections 85 of the Evidence Act Cap 62 of 1958- “Every affidavit used in the court shall contain only statement of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he belle yes to be true “. Paragraphs 14 to 17 above do not contain statement of facts. They rather contain unsupported assumption and legal conclusion based on non - existent or not yet proven facts. From the point of view of these apparent contravention of Section 85 and 86 of the Evidence Act, paragraphs 14 to 17 of the affidavit in support of this Motion for a Stay ought to be struck out. And when these paragraphs are struck out, there is absolutely not one single averment to support the prayer in this Motion for a Stay of Execution. Chief Williams, 5. A. N in ground 1 of his Notice of Preliminary Objection described the application for a stay as “frivolous vexatious and an abuse of process” I am in full agreement that paragraphs 14-17 of the affidavit in support are all these and more. They are untenable and cannot support this Motion”. 2.3 Secondly we also submit that this application is incompetent and not provided for under the rules and law of this Honourable Court contained in Order 11 Rule 1 (1) National Industrial Court Rules 2007. 2.4 It is obvious that due to absence of legal basis for this motion the 2nd Defendant also failed to comply with Order 11 Rule 1 (1) which provides as follows: “(1) Whereby the these Rules any application is authorized to be made to the court, such application may be made by motion supported by affidavit or by notice, and shall state under what rule of court or law the application is brought.---------------------------------------------------------------------------------------” 2.5 From the foregoing a search of the operative Rules of this court i.e National Industrial Court Rules 2007, Order 11 Rule 1 (1) thereof does not provide for this motion. The law does not also provide for it. Hence we submit that this motion: (a) Is not authorized (b) Has not stated the Rule under which it is made 2.6 The 2nd Defendant has therefore failed to comply with the mandatory Rules of this court provided under Order 11 Rule 1 (1) and the application ought to be struck out: see Conoil Plc V. Vitol S.A (2012) 2 NWLR (Part 1283) 50, 71 A per Bada, JCA: “A court of law can only entertain applications which are recognized by its rules’ see also Newswatch V. Atta (2006) 12 NWLR (Part 993) 144, 179: “An application not recognized by the Rules of court cannot be described as proper application”. 2.7 Furthermore rules of each court are made to be applied to guide its proceedings. And so Order 11 Rule 1 (1) is sacrosanct and must be obeyed, particularly to avoid the type of cross technicality which the 2nd Defendant is resorting to: see Anaekwu V. Osuji (2008) 2 NWLR (Part 1072) 506, 524 B-b per Fabiyi, JCA: “I need to point it out that in Afolabi V. Adekunle (1983) 14 NSCC 398 at 405, (1983) 2 SCNLR 141, the apex court pronounced that the rules of the court are meant to be obeyed by the parties. I dare say that they are meant to be applied by the court in deserving cases. Technicality should not be allowed to have upper hand as such defeats the ends of justice”. 2.8 We further say that any argument by 2 Defendant that the application is based on inherent jurisdiction of the court is unhelpful. This is because a jurisdiction is only inherent if it is firstly provided for or if it exists in the rules or law. In this case there is not jurisdiction provided for this type of application and inherent power cannot be used to cover failure to comply with the rules of court specifically provided for: see Enakhimion V. Edo Transport Services (2006) All FWLR (Part 334 – 882 2.9 It is noteworthy that both on the motion paper and in the written address, no reference is made to the Rules or law which support the application contrary to the express requirement or the Order 11 Rule 1 (1). And since it is not so provided for it is strange to so bring it as this court can only entertain application which are provided for by its law. It should therefore be struck out. 2.10 At paragraphs 2 (i), (ii) and (iii) of the affidavit in support of motion the 2nd Defendant made extensive references to the said judgment/Ruling and also deposed to part compliance with same. 2.11 At paragraphs 8 and 9 of the statement of facts Claimants pleaded part compliance with the said judgment/Ruling by the Defendants and also stated that the Defendants did not appeal against the said judgment/Ruling. 2.12 In the circumstances the said Ruling is binding and subsisting against the Defendants. To say therefore that the Police Service Commission is not joined is a mere after thought by the 2nd Defendant. Non joinder of the Police Service Commission so long as the Defendants did not appeal against the judgment and so long as the judgment/Ruling has not been Set aside is a none issue and is not a defence to the Defendants: see Rossek V. A,C. Limited (1993) 8 NWLR (Part 312) 382, 471 per Bello, CJN: “a judgment of a court of law is presumed valid and the parties concerned are not only bound to obey it but the authorities charged with responsibility for enforcement of judgment are also obliged to enforce it unless it is declared a nullity or set aside by a court of competent jurisdiction”. 2.13 Furthermore none joinder of a party to a suit is never fatal to the trial of this suit as the court will always deal with the suit with respect to the rights of the parties actually before it and against whom the judgment and ruling in suit No. PHC/200M/2004. PC Godspower Enoch & Anor V. Commissioner of Police & 2 Ors coram Justice J.M. Kobani, Judge dated 27/07/06 was given: see Warri Refining & Petrochemical Company Limited V. Onwo (1999) 12 NWLR (Part 630) 312, R.T.NACHPN Vs M & H W.U.N. (2008) 2 NWLR (Part 1072) 575, 641-643, Dapialong V.Lalong (2007) 5 NWLR (Part 1026) 199, 212 E-F, per Akaahs, JCA; Babayeju V. Ashamu (1988) 9 NWLR (Part 567) 546, 557 E-F, per Ogundare JSC; Green V. Green (1987) 3 NWLR (Part 61) 480. 2.14 Also it is submitted that where a Defendant conceives that it should not be the only person who is liable to be affected by a matter it is the duty of the said Defendant to apply to join such party and such a Defendant cannot pass on that responsibility to the Claimant: see Crown Flour Mills Limited V. Olokun (2008) 4 NWLR (Part 1077) 254, 281-282 G-E. 2.15 It is also submitted that Claimant joins only those against whom he convinces he has a right of action. Where from the statement of facts as filed by the Claimants nothing is claimed against the Police Service Commission then there is no obligation on the part of the Claimants to join the Police Service Commission. 2.16 It is further submitted that from the nature of evidence contained in the witness statement on oath and pleadings already filed as well as the documents to be relied upon at the trial, the nature of evidence to be offered in court in this case is such that the case of the Claimants can effectively and effectually be determined in the absence of the Police Service Commission just like in the subsisting judgment in suit No. PHC/200M/2004: PC Godspower Enoch & Anor V. Commissioner of Police & 2 Ors coram Justice J.M. Kobani, Judge dated 27/07/06 which was never appealed against. It is only in cases where the absence of the parties are essential to the determination of the case that a joinder can be made as the matter can also not be struck out: see Uku V. Okumagba (1974) 35C 34, Green V. Green (1987) 3 NWLR (Part 61) 480. 2.17 It is also our submission that this action is properly constituted with Claimants who have legal capacity to bring this action and Defendants to defend the action and a claim with cause of action against the Defendants having regard to the terms of subsisting ruling in suit No. PHC/200M/2004: PC Godspower Enoch & Anor V. Commissioner of Police & 2 Ors coram Justice J.M. Kobani, Judge dated 27/07/06. In the circumstances the action has satisfied all pre-conditions and the fact that the Police Service Commission (which anyway we do not concede is a necessary party) is not joined is not fatal to the action and will not render it a nullity: see Oladeinde & Anor V. Oduwole (1962) WNLR 41. 2.18 It is submitted that it is the claim of the Claimants that determine the jurisdiction of this court. From the claim of the Claimants there is nothing claimed against the Police Service Commission and so they are not a party needed in this suit. It is elementary and fundamental requirement of the institution of actions in court that a Defendant should not be brought to court unless a Claimant has a claim against him: see Ekpere & Ors V. Aforije & Ors (1972) 1 All NLR (Part l) 220. 2.19 We submit that to determine the claims of the Claimants over their outstanding salaries, benefits, emoluments etc the only necessary and vital parties are the present two Defendants against whom the earlier judgment/Ruling was given and who have partly complied with same. Therefore the cases cited by counsel for the 2nd Defendant are inapposite and inapplicable. The cases cited by the learned counsel for 2nd Defendant are clearly of no use. 2.20 We rely on paragraphs 3 and 4 of our counter affidavit to urge my Lord to hear this matter by overruling the objection as unnecessary and merely aimed at delaying the hearing of this case: See Amadi V, Nigerian National Petroleum Corporation (2000) 10 NWLR (Part 674) 76 at 100, para G-H, per Uwais, CJN: “I believe that counsel owe it, as a duty, to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here; so that the adage justice delayed is justice denied may cease to apply to the proceedings in our court” 2.21 On the whole therefore we urge that this motion be refused. 2nd DEFENDANT’S REPLY ON POINT OF LAW The Plaintiff/Respondent filed a 5 paragraph counter affidavit and written address fl support of the counter affidavit dated 7th day of February, 2012 and filed the same day. In response thereto we state as follows: Before going into the submission melt out by the claimants in their counter affidavit and written address, may I point out that paragraph 2(b) of the claimant’s counter affidavit are conclusive of law and argument which offends section 115(2) of the evidence Act 2011 and cannot support this motion. 1. Claimants’ submission hinged on Order 11 Rule 1 (1) National Industrial Court Rule 2007, failure of the 2nd Defendant to show the rule of court or law’ the application is brought. The 2 Defendant/Applicant preliminary Objection is based on jurisdiction of the Honourable Court to entertain this suit reason being that the proper/necessary party is not inclusive in the suit. It is trite to note that the issue of jurisdiction is not a mere technicality as submitted by the claimants’ counsel. It is a well settled law, that the jurisdiction of a court can be raised and determined by the Plaintiffs’ statement of claim as agreed by the claimant in paragraph 21.18 of their written address. See the case of ADA TA YO & 2 ORS VS. ADEMOLA & 2 ORS (2010) 3-5 S.C (Pt. 1) 87. “The law is indeed well settled that in cases initiated by writ of Summons and Statement of Claim such as the present case, the jurisdiction of the court is determined by the Plaintiff’s Statement of Claim. See ADEYEMI VS. OPEYORI (1976) 9-10 S.C 31 at 51; (1976) 9-10 S.C (Reprint) 18; TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 9 S.C I; (1989) 4 NWLR (Pt. 117) 517 and ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD VS GARBA (2002) 7 S.C (Pt. 11) 138; (2002) 14 NWLR (Pt. 788) 538 at 563. In other words, although it is necessary sometimes to hear some sort of evidence first in assistance for the purpose of the determination of or the resolution of the issue of instant case, the issue of jurisdiction ought to be determined on the Plaintiff’s Statement of Claim without any recourse to the Defendant’s Statement of Claim without any recourse to the Defendant’s Statement of Defence. See IZENKWE VS. NNADOZIE 14 waca 361 and ATTORNEY-GENERAL KWARA STATE VS. OLAWALE (1993) 1 NWLR (Pt. 272) 645. The law is also well settled that the question of jurisdiction strikes at the roots of any cause or matter and consequently raises the issues of competence of the court to adjudicate in the particular proceedings. Therefore any defect in competence is fatal as such proceedings become null and void no matter how well conducted and decided the proceedings have been. MADUKOLU & ORS VS. NKEMDIL,M & ORS (1962) 2 SCNLR 341 and SKEN CONSULT (NIGERIA) LTD VS. UKEY (1981) 1 S.C 6 (1981) 1 S.C 6; (1981) 1 S.C (Reprint) 4.” 2. The claimants are Police Officers, employed by the Nigerian Police in accordance with Section 2 and 18 of the Police Act and Section 214 of the Constitution of Federal Republic of Nigeria 1999, only one Nigerian Police Force is recognized. However, the Claimants case, emanates from the judgment/Ruling of Rivers States High Court, where the purported arrears of salaries, emolument gave birth to this present suit against the Defendants. By virtue of Section 9 (1) (c), 15 (1), 17(3), 22(2) and 22(4) the operational control of the Police Force is with the Police Service Commission, who has total responsibility concerning appointment, re-instatement disciplinary control and dismissal of the members of the force. See the case of OKOH & 7 ORS VS. UNILAG & 1/C UNILAG (2011) NWLR, (Pt. 1268) at 563, where court held; “The Appellant in their capacity as supernumerary Police Officer had exhibited no document to buttress their assertion that they were appointed by the respondents, neither was there anything to show that regulates their relationship by way of term and condition of service. If the Appellants allege that the respondents relationship with the appellants is coated with statutory flavour, where is the document to buttress this? The appellants had tendered EXHIBITS A, B, B 1-86 and G. Exhibits A, B, B1-B6 are termed “Certificate of Service” which states thereon Commencement and termination of services. This they did as a feeble attempt on their pa to make the said exhibits the terms and Conditions of their employment with respect ex-face Exhibit A, B, B1-86 and G cannot be letters of appointment by any stretch of imagination. Neither do these exhibits say anything about terms and conditions regulating the relationship been the appellants and the respondents I shall dwell more on this as I go on this judgment. The appellants had also relied on Exhibit “C” Which 15 titled “Conclusion of Service and personal emoluments of the supernumerary Police. It is dated 12th June, 1996 With reference No. 3100/LS/Vol.1/14, addressed to the Registrar University of Lagos, Akoka and signed by one Bayo Ajileye Chief Superintendent of Police (Admin). Notably is that this letter came in a year before the appellants were issued With Exhibit “A “, “B1, - B” and “G’. In the first Paragraph of Exhibit “C ‘ it says: This is to notify you of the recent changes in personal emolument structure of the Supernumerary Police personal deployed to your establishment for your necessary action. Regrettably, there is no “personal emolument structure” exhibited before the trial court in the first place. The appellants case is that they 4. It is our submission that this suit were instituted in violation of the requirement of the provision of the Section 105 Sheriffs and Civil Process Act Cap. S6 Law of the Federation 2004, so amount to re-litigating on same issue that judgment has been delivered upon. See the case of ANSA VS. CROSS LINES LTD (2005) 14 NWLR (Pt. 946) 645 C.A where the court held; “It is an abuse of process to re-litigate an issue before the same court. In the instant case, the trial court rightly dismissed the appellants application as an abuse of process on having come to the conclusion that the issue had already been ruled upon.” See also CHIEF SAMPSON OKONITO & ORS VS. CHIEF OKON UDO EKPE (2000) 2 S.C. 98 This present suit emanates as a result of judgment delivered by Rivers State High Court, even before this Honourable court assumed jurisdiction, therefore the claimant cannot re-litigate this issue the second time but they should come for the enforcement of the judgment. Also by virtue of section 59 of the Evidence Act, Law of the Federation of Nigeria, 2011, provide as follows; “The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such court ought to take cognizance of such suit or hold such trial.” See OGBORU VS. IBORI (2005) 13 NWLR (Pt. 942) 319. 5. It is also the general principle of law that once a court has delivered its ruling or judgment it becomes FUNCTUS-OFFICIO bereft of the jurisdiction to vary the judgment or ruling or sit on appeal against tie very judgment or ruling OGBORU VS. IBORI (SUPRA). 6. It is submitted that the doctrine of RES JUDICATA rest on the principle that there must be an end to Litigation. Parties should meet and must not be allowed to relitigate a matter that has been settled in a final decision of a court of competent jurisdiction. Following the condition precedent that must be met: a. There must be an adjudication of the issues joined by the parties. b. The parties or their privies as the case may be must be the same in the present case as in the previous case. c. The issues and subject matter must be the same in the previous case as in the present case. d. The adjudication in the previous case must have been by a court of competent jurisdiction. e. The previous decision must have finally decided the issue between the parties that is the rights of the parties mush have been finally determined. This present suit, having shown to co-exist, the subject matter of litigation is caught by estoppel res judicata and neither the party nor his or her privy may re-litigate that issue again by bringing fresh action on it, See THE HONDA PLACE LTD. VS. GLOBE MOTORS LTD. (2005) 14 NWLR (Pt. 945) 273 It is also our submission that the proper/necessary party are not before this court and secondly that the claimant cannot bring a fresh action, on which a court of competent jurisdiction has given judgment upon. With the above submissions, we urge this court to hold that this suit is an abuse of court process and the proper/necessary party is not before it. I have carefully considered the processes, arguments and submissions of parties in this matter. The main issue for the determination of the court is whether or not the Police Service Commissions is a necessary party in this suit and whether its non-inclusion is fatal to this suit. It is the case of the 2nd Defendant that the claimants in this case, having been declared police officers under the operational control of the Police Service Commission, they must seek their remedies against the Police Service Commission, which has not been made a party in the suit. This, according to the 2nd Defendant ousts the jurisdiction of this court to entertain the case as the proper party, responsible for carrying out the reliefs being sought by the claimants, is not before the court. The 2nd defendant/applicant relied on the authority of Cotecna International Ltd vs. Churchgate Nigeria ltd & Anor, supra. In his reaction, learned claimants’ counsel attacked the notice of preliminary objection as being incompetent by virtue of the provisions of Order 11Rule 1(1) of the National Industrial court Rules 2007, for failing to state under which rule or law the application was brought by the 2nd defendant. Let me deal with this point straight away. Having looked at the submissions of learned counsel on this issue and the authorities cited, I am of the view that the objection of the claimants/respondents counsel is misconceived. This is because, the 2nd defendant is challenging the jurisdiction of the court and it is trite that a party has the right to raise object against the jurisdiction of the court, at any stage of proceedings and even for the first time on appeal. Therefore the competence of the application of the 2nd defendant cannot be successfully challenged when it is against the jurisdiction of the court. It is therefore my decision that the application is competent before the court and I so hold. Learned claimants counsel in arguing against the substance of the application submitted that since the present suit is predicated on the decision given in suit No. PHC/200M/2004: Godspower Enoch & Anor vs. Commissioner of Police & 2 Ors Judgment delivered on 27/7/06, and that there has been no appeal against the said decision, there is no basis for saying that proper parties are not before the court. That the court should proceed to hear the matter and determine it based on the rights of the existing parties before it. However, the 2nd defendant has argued that the Police Service Commission, by virtue of the provisions of sections 9(1)(c ), 15(1), 17(3), 18, 19, 21, 20, 22(2) (3) (4) of the Police Act, the Police Service Commission is indeed a necessary party in this matter. I have carefully considered all the arguments and submissions of the parties in this matter and upon examining the reliefs claimed by the claimants, they are for a declaration and orders against both defendants, i.e., the Commissioner of Police and the Shell Petroleum Development Company of Nigeria. Thus both defendants are expected to be liable and proceeded against. The provisions of the Police Act referred to above do show, in my humble view, that the claimants and the 1st defendant are all subject to the jurisdiction of the Police Service Commission. The necessary conclusion to draw is that the said Police Service Commission is a necessary party in this suit, if the court is to effectually and completely determine this suit and I so hold. In its reply on points of law, learned counsel for the 2nd defendant argued two points relating to the competence of suit in terms of its not complying with provisions of the Sheriffs and Civil Process Act and the fact that the claims of the claimant are caught up by the doctrine of res judicata. I have looked at the submissions of counsel as well the facts and circumstances of this application and it is apparent to me that those issues were not canvassed either by the counsel for the 2nd defendant in its application or written address in support thereof, or even raised by the claimants counsel in his reply address. They were therefore raised for the first time in the reply on points of law. Consequently therefore, those points as raised and argued go to no issue as far as this application is concerned, and I so hold. In the circumstance and for all the reasons given above, I hereby hold that the preliminary objection of the 2nd defendant succeeds as the necessary party in this suit, i.e., the Police Service Commission, has not been sued by the Claimants. Consequently, the suit is hereby struck out. I make no order as to costs. Ruling is entered accordingly. Hon. Justice Auwal Ibrahim Presiding Judge