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REPRESENTATION A. A. Oruma, and with him are Mr. A. A. Osara, Mr. O. Nwachukwu and Mr. Uchenna Eze, for the claimants/applicants. G. O. Onojason, for the 1st defendant/respondent. K. Ayorinde, for the 2nd defendant/respondent. RULING The claimants had commenced this action vide a complaint dated 29th November 2012 with the accompanying originating processes. On 6th September 2013, the claimants/applicants filed a motion on notice pursuant to Order 19 Rule 11 of the National Industrial Court (NIC) Rules 2007, Order 43 of the Federal High Court Civil Procedure Rules, Order 26 Rule 8 of the Lagos State High Court Civil Procedure Rules praying for – 1. An order on the 2nd defendant/respondent to produce in Court the Sales Purchase Agreement entered into by both defendants/respondents over Oil Mining Lease 42 (OML 42). 2. And for such further other order, or orders, as the Honourable Court may deem fit to make in the circumstances. In support of the motion is a 14-paragraphed affidavit deposed to at the High Court of Justice Ughelli, by Peter Yinkore, the 1st claimant, and a written address. In reaction, the 2nd defendant/respondent filed on 21st October 2013 its written address. Since the motion of the claimants/applicants is not directed at the 1st defendant, the 1st defendant did not react to the said motion. To the claimants/applicants, it is common ground that both defendants reached an agreement over Oil Mining Lease 42 (OML 42) wherein a Sales Purchase Agreement was entered into. That the 2nd defendant agreed with the 1st defendant in the said Sales Purchase Agreement to provide it (1st defendant) with a complement of staff to operate OML 42 and that the staff so provided will have a guaranteed continuous employment for a minimum period of two years, which facts are contained in the Sales Purchase Agreement. That it was based on the Sales Purchase Agreement that the 2nd defendant/respondent selected the claimants and 41 other persons to go and work for the 1st defendant which the claimants/applicant were compelled to accept by accepting to end their employment with the 2nd defendant and taking up a new employment with the 1st defendant. The claimants/applicant continued that the 2nd defendant/respondent in their statement of defence, however, deny that they neither agreed to provide the 1st defendant with staff to operate OML 42 nor was there any guarantee of continuous employment for a period of two years. That the 2nd defendant/respondent has shown in its statement of defence that it will not allow the claimants/applicants to rely on the Sales Purchase Agreement at the trial. That in the circumstance, it will require an order of the Court to compel them to produce the agreement at the trial. The claimants/applicants then posed 3 questions for the determination of the Court, namely – 1. Whether the document in question exists. 2. Is the document with the party being asked to produce it? 3. Is the document relevant to the trial? Regarding the 3 questions, the claimants/applicants contended that the 2nd defendant has admitted in paragraphs 6 and 21 of their statement of defence the existence of the document but does not want to produce it because it claims that the claimants/applicants are not party to the document; neither did they provide consideration and as such cannot benefit from the document. That these averments clearly show that the 2nd defendant has the document in question. The claimants/applicant went on to submit that the reason for the 2nd defendant’s refusal is not tenable as Exhibits MC and MD which were attached to the affidavit in support of the motion, their witness statement on oath and affidavit evidence show that the 2nd defendant acted as their agent in negotiating for employments for the claimants/applicants with the 1st defendant. That the agent cannot withhold information from the principal in respect of the agency, relying on Dadswell v. Jacob (1887) 34 CH.D 278: Bevan v. Webb [1901] CH.D 59. The claimants/applicants continued that they offered consideration by accepting to end their contract with the 2nd defendant and enter a new one with the 1st defendant and as such they are entitled to bring those facts which they believe are contained in the Sales Purchase Agreement before this Court to enable the Court determine whether their rights have been breached or not. That in light of the above, the Sales Purchase Agreement is relevant to the determination of this matter. In support of their submissions, the claimants/applicants referred the Court to Olawepo v. Saraki [2009] All FWLR (Pt. 498) 256 at 294 A – H (CA), where it was held that – In all such cases the party who desired to see, inspect or use material facts or documents in possession of his opponent would be assisted on his application by the court which may order the material documents to be produced for the use of the other party...Under the various Rules of Court, any of the parties to a suit may apply to the court for order to answer interrogatories, for discovery or inspection of documents, ordering of particulars of production of documents. If any party fails to comply with any such order(s), he shall be liable to committal. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution and if a defendant, to have his defence, if any struck out and to be placed in the same position as if he had not defended. None of the provisions in the various Rules of Court including Order 20 Rule 7(1) and 2 and Rule 18, Federal High Court (Civil Procedure) Rules and paragraphs 5 and 17 of the First Schedule to the Electoral Act cited by the learned counsel for the appellant compels the respondents in this case to ask for further particulars when they require none for the conduct of their own case from the petition/appellant. Also referred to the Court is Michael O. Femuyide v. R. C. Living & Company Ltd [1992] 7 NWLR (Pt. 256) 639 at 634 E – G, where the Supreme Court held that a plaintiff will be allowed to discover facts from the defendant if such facts from the defendant support the plaintiff’s case. In conclusion, the claimants/applicants urged the Court to grant their application as prayed given that the affidavit evidence shows that the document required is relevant to their claim and it will be in the interest of justice if it is produce and tendered in Court to enable the Court reach a just decision in the matter. In its reply written address, the 2nd defendant/respondent first made some preliminary submissions. The first preliminary submission was on the competence of the claimants/applicants’ affidavit in support of the motion at hand. That the affidavit in support was sworn to and filed at the High Court of Justice, Ughelli; not in this Court. To the 2nd defendant/respondent, there is no justification for the filing of the said affidavit at the High Court particularly when the Rules of this Court and the Act do not accommodate such practice. The 2nd defendant/respondent, at the point of adopting its written address, referred the Court to Abia State Transport Corporation v. Quorum Construction Ltd [2003] FWLR (Pt. 151) 1975 regarding the issue whether an affidavit sworn to in another Court can be used in a Court. It is the further submission of the 2nd defendant/respondent that the said affidavit cannot stand in isolation; same must form part of the processes filed in this Court. But unfortunately, having not filed the said affidavit before the registrar of this Court who has the power to administer oath as provided under section 37(3) of the National Industrial Court Act, the affidavit is not competent to be relied on by the claimants/applicants, urging the Court to discountenance the said claimants/applicants’ affidavit. That if the Court agrees with the submission of the 2nd defendant/respondent, the implication is that the claimants/applicants’ motion on notice of 6th September 2013 cannot stand in law, the claimants/applicants having failed to support the said motion with a competent affidavit, urging the Court to so hold. The second preliminary issue is whether the claimants/applicants’ motion on notice is an abuse of court process taking into consideration the fact that the claimants/applicants have already filed and served a notice to produce the said document on the 2nd defendant/respondent. Here, the 2nd defendant/respondent contended that the claimants/applicants have served the respondent with notice to produce the document under reference and a combined reading of the provisions of sections 89 and 91 of the Evidence Act will justify the 2nd defendant/respondent’s subsequent submissions. To the 2nd defendant/respondent, it is in consonance with the combined provisions of sections 89 and 91 of the Evidence Act, the claimants/applicants having pleaded the subject matter, Sale Purchase Agreement, at paragraph 12 of their statement of facts, all the claimants/applicants are obliged to do is to simply serve notice to produce on the 2nd respondent (which they have done) and if the 2nd respondent does not produce the requested document as envisaged by the law, then the claimants can now tender secondary evidence. Furthermore, that a notice to produce relates merely to production of documents by the person served therewith, who is not under compulsion to bring the documents to court, referring to UBN Plc v. Idiris [1999] 7 NWLR (Pt. 609) 105 at 118 – 119 H – A, where the Court of Appeal stated thus: Notice to produce issued on a party does not make it obligatory for that party to produce the document requested. It only entitles the party giving the notice to adduce secondary evidence of the document in question by virtue of section 98 of the Evidence Act. In this case, the notice to produce the respondent’s statements of account issued on the 1st appellant does not relieve the respondent of the burden of proving his case. This is because the 1st appellant is not by the notice obligated to produce the said statements of account. The notice only entitled the respondent to adduce secondary evidence of the statements. If the respondent challenges any item of entry or omission in Exhibit 1, he is equally in a position to exhibit such evidence of challenge by himself producing stubs of his cheques, vouchers, tellers etc., in his possession with which to falsify or surcharge such entries. To the 2nd defendant/respondent, relying on the above cited authority, notice to produce is not a mechanism to obtain from another party a document which the claimants/applicants do not have rather it only gives a party who issued notice to produce right to tender secondary evidence. However, that what the claimants/applicants have done in this case by bringing this application seeking for the Court’s order to the effect that the 2nd respondent should produce the Sale Purchase Agreement defeats the guiding principles of notice to produce which allows a party to tender secondary evidence where the primary evidence is not produced. It is, therefore, the submission of the 2nd defendant/respondent that the instant motion is an abuse of court process, the claimants having served notice to produce on the 1st respondent. That in ACB Plc v. Nwaigwe [2011] 7 NWLR (Pt. 1246) 380 at 392 – 393 H – C, the Supreme Court stated thus – Abuse of court process has been defined to include where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice; where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and same subject matter; or where the process of the court has not been used bona fide and properly. To the 2nd defendant/respondent, in consonance with ACB Plc v. Nwaigwe, the elements of abuse embedded in the claimants/applicants’ present application can be summarized as follows – a) The claimants/applicants in their substantive reliefs are seeking for an order of this Court to the effect that the 1st and 2nd respondents should produce the Sale Purchase Agreement. The claimants/applicants are yet to prove their case in this respect. b) The claimants/applicants filed and served the 2nd respondent with a Notice to Produce (dated 6th September 2013) the Sale Purchase Agreement inter alia other documents. c) The claimants/applicants have also brought this application seeking the order of this Court to the effect that the 2nd respondent should produce the Sale Purchase Agreement. To the 2nd defendant/respondent, what other evidence of abuse of court process do we need to prove than the above stated ones? It then urged the Court to hold that this present application is an abuse of court process and strike same out with substantial cost. The 2nd defendant/respondent continued that Order 19 Rule 11 of the Rules of this Court pursuant to which the claimants brought this application is even not applicable. Also, that Order 43 of the Federal High Court Rules and Order 26 Rule 8 of the High Court of Lagos State Rules cited by the claimants/applicants are not applicable as both Orders relate to discovery of document and not otherwise. To the 2nd defendant/respondent, Order 19 Rule 11 of the NIC Rules is applicable to a 3rd party who is not a party to the suit. But in this case, the 2nd respondent is a party who has filed necessary processes to defend itself in this suit and taking into consideration the fact that we practise advertorial legal system, the 2nd respondent’s duty is to defend itself in this suit and not to support the claimants in proving their claims particularly when parties have joined issues on the subject matter document, urging the Court to so hold. On the substantive submissions on the issue at hand, the 2nd defendant/respondent framed the following issue for the determination of the Court – Whether the claimants/applicants’ prayer as contained in their motion on notice dated 6th September 2013 can be sustained having regard to the pleadings on record, particularly with reference to the Sale Purchase Agreement the claimants/applicants are seeking the order of Court on the 2nd defendant/respondent to produce and also taking into consideration decided authority on privity of contract and the provision of section 185 of the Evidence Act 2011. It is the submission of the 2nd defendant/respondent that the claimants/applicants’ prayer as contained in the motion on notice under reference is among the various reliefs being sought by the claimants/applicants in the substantive suit before this Court. For the purpose of emphasis relief (d) of the claimants/applicants’ reliefs as contained in their statement of facts dated 29th November 2012 is for – An order on the 1st and 2nd defendants to produce the Sales Purchase Agreement (SPA) over OML42 between them, which is the foundation of the contract of employment between the claimants and 1st defendant which contains the benefits accruing to the claimants. That going by relief (d), the Court can now agree with the 2nd defendant/respondent that this present application no doubt is tantamount to winning a game without playing the match. The claimants/applicants are yet to lead evidence before this Court, which may persuade the Court to grant the said relief, yet the claimants/applicants have come through the back door to obtain the said relief. That this approach is unknown to our law, urging the Court to strike out this present motion on notice as it is a general principle of law that the claimants/applicants must prove they are entitled to the said relief before the Court can grant same. The 2nd defendant/respondent then referred the Court to Ojukwu v. Yar'Adua [2009] 12 NWLR (Pt. 1154) 50 at 176 – 177 D – B, where Onnoghen, JSC in a dissenting opinion stated thus – Furthermore, it is settled law that the court does not decide the merit of a case at the interlocutory stage of the proceedings. Where the court errs and decides the substantive matter at the interlocutory stage, as in the instant case, the proper thing is to set aside the purported determination and remit the matter to the lower court for proper determination on the merit by a different panel.... The 2nd defendant/respondent also submitted that this application is bound to fail on the ground that the 2nd respondent is not obliged to produce the said Sale Purchase Agreement on the authority of section 185 of the Evidence Act 2011 which provides thus – No one shall be compelled to produce documents in his possession which any other person would be entitled to refuse to produce if they were in his possession, unless such last mentioned person consents to their production. That taking the above provision into consideration, it is not in doubt that the subject matter Sale Purchase Agreement was executed between the 1st respondent and the 2nd respondent. It is also not in doubt that the claimants/applicants are not parties to the said Sale Purchase Agreement. This is even evident in the claimants’ relief (d) in the substantive suit. It is also a settled principle of law with plethora of authorities that a person who is not a party to a contract cannot bring an action to derive benefit from the said agreement, referring the Court to New Res. Int’l Ltd v. Oranusi [2011] 2 NWLR (Pt. 1230) 102 at 125 G – ¬H, where the Court of Appeal stated thus – A contract affects the parties to it, and cannot be enforced by or against a person who is not a party even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The 2nd defendant/respondent then submitted that the subject matter Sale Purchase Agreement falls within the category of documents which the 1st and 2nd respondents cannot be compelled to produce as the claimants have no legal right to sue on the Sale Purchase Agreement. That the claimants at paragraph 12 of their statement of facts dated 29th November 2012 confirmed that the Sale Purchase Agreement was executed between the 1st and 2nd respondents. All that the claimants stated is that the 2nd respondent acted as their representative with the 1st respondent in negotiating for their employment. Also referred to the Court is paragraph 9 of the claimants/applicants’ affidavit. That it must also be stated that the claimants/applicants have not placed any instrument authorizing the 2nd respondent to act as their representative or agent. It is, therefore, the submission of the 2nd defendant/respondent that this Court is not a gabbling forum for the claimants for any purported claim. The 2nd defendant/respondent further submitted that the 1st respondent is also entitled not to produce the Sale Purchase Agreement; and in the absence of any consent from the 1st respondent that the 2nd respondent should produce the Sale Purchase Agreement, then the provision of section 185 quoted above will avail the 2nd respondent from producing the Sale Purchase Agreement, urging the Court to so hold. In conclusion, the 2nd defendant/respondent urged the Court to strike out this application with substantial cost. The claimant did not file any reply on points of law. I heard learned counsel in the matter and considered all the processes and submissions advanced. I need to first remark on an issue relating to the submissions of the 2nd defendant/respondent. The 2nd defendant/respondent had referred this Court to the dissenting opinion of Onnoghen, JSC in Ojukwu v. Yar'Adua [2009] 12 NWLR (Pt. 1154) 50 at 176 – 177 D – B. I am not too sure I understand what the 2nd defendant/respondent meant by doing this. Even if the dissenting opinion refers to a statement of established principle(s) of law, is counsel saying that there are no other authorities to refer to but a dissenting opinion? I am unaware of the authority that elevates a dissenting opinion to the position of the ratio and hence holding/judgment of a Court. I now turn to the merit of the submissions of the parties. The case of the claimants is that the Sale Purchase Agreement between the 1st defendant and the 2nd defendant is contrary to its case and so this Court should order the 2nd defendant to produce same. The 2nd defendant is objecting on the ground that having first filed a notice to produce, the claimants cannot also file a motion to that effect. In any case that the affidavit in support of the motion is defective, in which case there is no valid motion before the Court. In the third place, that what the claimants are seeking as per the motion is actually their relief (d) in the substantive; and to grant the praying in this motion is tantamount to granting a substantive relief. I shall first address the issue of the competence of the affidavit in support of the present motion on notice. I looked at the said affidavit. In actual fact, it was sworn to and filed at the High Court of Justice, Ughelli; not in this Court. Section 109 of the Evidence Act provides that “any affidavit sworn before any judge, officer or other person duly authorised to take affidavits in Nigeria may be used in the court in all cases where affidavits are admissible”. In support of their position, the claimants subsequently sent to the Court three authorities to the Court as illustrations of the power of a Court to use an affidavit sworn to in another Court. The authorities are: Abia State Transport Corporation & ors v. Quorum Consortium Limited [2003] FWLR 1975 at 1996, Buhari v. INEC [2008] 4 NWLR (Pt. 1078) 546 and Oparaugo v. Oparaugo [2008] 5 NWLR (Pt. 1081) 574 at 599. These cases, citing sections 80 – 82 of the 1990 Evidence Act, held that affidavits sworn to before any Judge, officer in the Commonwealth authorized to take affidavits, can be used in courts in all cases where affidavits are admissible. The issue here is that section 109 of the 2011 Evidence is slightly different from section 80 of the 1990 Evidence Act. Section 80 of the 1999 Evidence Act provides that – Any affidavit sworn before any Judge, officer or other person in the Commonwealth to take affidavits, may be used in the court in all cases where affidavits are admissible. There is no provision as to “the Commonwealth” in section 109 of the 2011 Evidence Act. In like manner, the issue of “person duly authorised to take affidavits in Nigeria” found in section 109 of the 2011 Evidence cannot be found in the 1990 Act. The point about the 2011 Act is that in making provision as to “person duly authorised to take affidavits in Nigeria”, a Court has to be certain that the affidavit sworn to elsewhere was sworn to before one authorize to take affidavits. My understanding of section 109 of the 2011 Evidence Act, therefore, is that an affidavit sworn before any judge, officer or other person can be used in the court that the judge, officer or other person before whom it was sworn to works. The use of the phrase “in the court” in section 109 of the Evidence Act 2011 yields to this conclusion. On this authority, I find and hold that the affidavit in support of the claimants’ motion having not been sworn to and filed in this Court is defective and so invalid for purposes of the claimant’s instant motion. This means that the said motion is unsupported by an affidavit; and being so unsupported, the motion is defective is going against Order 11 Rule 1(1) of the National Industrial Court Rules 2007. This implies that there is no valid application before the Court. For this reason alone, the claimants’ motion ought to be struck; but the 2nd defendant raised further issues – and Courts are enjoined to pronounce on all issues raised before it. In that respect, I shall proceed to address the other issues raised by the 2nd defendant. The 2nd defendant/respondent had argued that notice to produce is not a mechanism to obtain from another party a document which one does not have; rather it only gives the party who issued notice to produce right to tender secondary evidence. By this submission, the 2nd defendant/respondent appears to make a distinction between a notice to produce and the right to produce secondary evidence. If this argument is correct, then the claimants/applicants are right to have filed the instant motion since under Order 19 Rule 11 of the NIC Rules 2007, this Court “may of its own motion or on the application of any party order any person to appear before the Court as a witness or to produce any document”. A global reading of sections 89 and 91 of the Evidence Act as reproduced by the 2nd defendant/respondent shows that the tendering of secondary evidence is the outcome, the result of failure to produce the original as may be demanded. It is not independent of the right to have the original document tendered. But under Order 19 Rule 11 of the NIC Rules, the right to apply for the production of a document is an independent right especially where both the secondary and original copies of the document are not in the possession of the party applying for the production of the document. Inherently, a notice to produce is not obligatory as held by the Court of Appeal in UBN Plc v. Idiris; but this is not the case regarding Order 19 Rule 11 of the NIC Rules. Once the applicant for the production of a document can convince the Court that the document does in fact exist, the party can apply for its production under Order 19 Rule 11 of the NIC Rules. See also section 36(c) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004 which provides that this Court can “compel the production before it of books, papers, documents and other things for the purpose of enabling them to be examined or referred to so far as may be necessary in order to obtain information relevant to the matter” at hand. All of this is different and independent of sections 89 and 91 of the Evidence Act. In this respect, arguments of the 2nd defendant/respondent in that regard lack merit and so are rejected. The argument of the 2nd defendant/respondent, that Order 19 Rule 11 of the NIC Rules is applicable to a 3rd party who is not a party to the suit looses sight of the fact that the Rule is that this Court “may…on the application of any party order any person…to produce any document”. The key phrase is “any person”. Is the 2nd defendant/respondent not a person? If in law it is, is the word “any” describing the word “person” referred to in the Rule not enough to bring the 2nd defendant/respondent within contemplation? In other words, does the phrase “any person” not cover the 2nd defendant/respondent? I think it does; and I so find and hold. To even argue that because we practise an advertorial legal system, the 2nd respondent’s duty is to defend itself in this suit and not to support the claimants in proving their claims particularly when parties have joined issues on the subject matter document is taking the matter too far. What should interest all and which must constantly be borne in mind is that the interest of justice is paramount. The administration of justice is not a game. A counsel is always enjoined to bring to the attention of the Court evidence that may even be adverse to the case of his client. If the Sale Purchase Agreement, the document presently in issue, is relevant to the case at hand, the 2nd defendant/respondent is enjoined to produce it. And in further arguing that the claimants/applicants’ application for an order that the 2nd respondent should produce the Sale Purchase Agreement defeats the guiding principles of notice to produce which allows a party to tender secondary evidence where the primary evidence is not produced, the 2nd defendant/respondent is actually not denying the existence of the document but is relying on mere technicality. Section 12 of the NIC Act 2006 does not permit this sort of reliance on technicality to the detriment of the interest of justice. In this sense, I do not think that the instant motion is an abuse of court process as the 2nd defendant/respondent would want this Court to believe; and I so find and hold. The reference to ACB Plc v. Nwaigwe by the 2nd defendant/respondent is consequently out of context. In like manner, the reference by the 2nd defendant to privity of contract at this stage of the case is uncalled for since the issue of privity of contract is one for the defence to the action and not a matter for an interlocutory matter at this stage of the proceedings. This leaves out the third strand of the opposition of the 2nd defendant to the motion at hand, namely, that this Court cannot grant the prayer of the claimants for in doing so, relief (d) in the substantive suit would have been thereby granted. I agree that Courts are enjoined not grant substantive reliefs at the interlocutory stage when same has not been proved. In this regard, I agree with the 2nd defendant that relief (d), in being a prayer for “an order on the 1st and 2nd defendants to produce the Sales Purchase Agreement (SPA) over OML42 between them, which is the foundation of the contract of employment between the claimants and 1st defendant which contains the benefits accruing to the claimants”, cannot be granted without proof. What the claimants have done through the instant motion is to seek a substantive relief through an interlocutory application. This is unsupported by our laws; and I so find and hold. On the whole, I do not think that the claimants’ application has any merit. It is accordingly struck out. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip