Download PDF
BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice V. N. Okobi - Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O. A. Ohaseki-Osaghae - Judge Hon. Justice J. T. Aghadu-Fishim - Judge DATE: JULY 15, 2009 SUIT NO. NIC/21/2002 BETWEEN 1. Gabriel Erapi ; 2. John Osadolor 3. Ayo Gbenoba 4. Adebayo Fasakin (Suing for themselves and on behalf of other members of the Nigeria Union of Journalists (Concord NUJ Chapel) and also non-members all of whom are staff/employees of the Concord Press of Nigeria Limited) - Claimants/Respondents AND Concord Press of Nigeria Limited Mr. Kola Abiola - Respondents/Applicants REPRESENTATION Fred Agbaje, and with him are Adeniyi Pokanu and Olanrewaju Olaleye, for the claimants/respondents. M. U. Faruq Esq., for the respondent/applicants. RULING This is a motion on notice dated 13th January 2009 brought by the respondents/applicants pursuant to Order 11 Rule 1 of the National Industrial Court Rules 2007 and section 1(2) of the Trade Disputes Act (TDA) Laws of the Federation 2004 and under the inherent jurisdiction of the court seeking the following orders - 1. An order striking out the name of the 2nd applicant in this suit. 2. And for such order or further orders as this court may deem fit to make in the circumstance. The grounds under which these orders are sought by the respondents/applicants are as follows - 1. The entire suit as constituted by the respondents against the 2nd applicant offends the provisions of section 1 (2) of the Trade Disputes Act Cap. 432 LFN 1999. 2. There is no proof in the records of the Corporate Affairs Commission (CAC) Abuja signifying that the 2nd respondent/applicant is a director or chairman/board of directors of the 1st respondent/applicant. 3. Non-disclosure of cause of action against the 2nd respondent/applicant. The motion is supported by a nine-paragraphed affidavit sworn to by Yusuf Shitta on the 13th January 2009, to which is attached one exhibit marked 'A' which is a certified true copy of form C07. The claimants/respondents did not file a counter-affidavit to this motion but rather made reference to the counter-affidavit sworn to by Gabriel Erapi on the 8th February 2005 in opposition to a similar motion earlier filed by the respondents/applicants on the 6lh December 2004. This motion was withdrawn by the respondents/applicants with leave of this court on the 28th January 2009 and subsequently struck out. There is, therefore, no counter-affidavit before this court in respect of the present application. Parties agreed to argue the motion on record and in that regard filed and exchanged written addresses. The respondent/applicant's written address is dated 13!h January 2009 while that of the claimant/respondent is dated 26th February 2009. Both parties adopted their written submissions. Counsel to the respondents/applicants in his written address stated that the substantive suit dated 28lh October 2002 was instituted against the respondents/applicants herein as 1st and 2nd respondents for reliefs purportedly arising from a trade dispute between the respondents/applicants as the employer and claimants/respondents as employees pursuant to section 15(1) and (2) of the Trade Disputes Act 1990. That the 2nd respondent/applicant was wrongly sued on the false belief that he is the chairman of the 1st respondent/applicant herein without showing any cause of action against him. That this application is against the misjoinder of the 2nd respondent/applicant. The respondents/applicants' counsel identified two issues for determination which are - (1) Whether this suit as constituted discloses any cause of action against the 2nd respondent/applicant. (2) Whether the 2nd respondent/applicant could be made a party whose absence will hamper effectual and complete adjudication of the substantive suit. On issue 1, counsel submitted that the claimants/respondents have not shown any nexus between the 1st respondent/applicant and 2nd respondent/applicant rather than merely stating that the 2nd respondent/applicant is the "one managing the estate (including the affairs of the 1st respondent/applicant) of his late father, Chief M. K. O. Abiola who was Chairman, Board of Directors of the 1st respondents/applicant". He referred to paragraphs 4, 5 and 6 of the affidavit in support of the motion and exhibit A. He submitted that exhibit A, which is a certified .true copy of the particulars of directors and of any changes therein (form C07) clearly shows that the 2 respondent/applicant is not a director of the 1st respondent/applicant company and that it is trite law that a company is a separate legal entity. He cited the cases of Salomon v. Salomon & Co. (1897) AC 22 at 66, Madilas & Karaberies Ltd v. COP [1958] WNLR 147 and sections 37 and 38 of the Companies and Allied Matters Act. Counsel further submitted that this suit as constituted does not disclose a cause of action against the 2nd respondent/applicant and cited the case of Savage v. Uwaehia [1972] 1 ANLR (Pt. 1) 251 at 257 for the definition of a cause of action. He argued that the claimants/respondents have failed to connect the 2nd respondent/applicant to the alleged wrongful acts and that the suit as constituted against him is vexatious and instituted to embarrass him. On issue 2, counsel stated that the 2nd respondent/applicant's connection with the 1st respondent/applicant is that he is the eldest son of a former director of the 1st respondent/applicant. He referred to paragraphs 4, 5, 6 and 7 of the affidavit in support and submitted that in law, that fact cannot render the 2nd respondent/applicant answerable to the alleged trade dispute between the claimants/respondents and their alleged employer. That section 1 of the Trade Disputes Act defines "party" to mean "a party to the dispute" and trade dispute to mean "any dispute between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person". He argued that the 2nd respondent/applicant cannot be clothed with the employer status of the 1st respondent/applicant and that there is no personal claim against the 2nd respondent/applicant. Counsel submitted that the test as to whether there should be a joinder of parties arises from the need to have before the court such parties as would enable it to effectively and completely adjudicate upon and settle all the questions in the suit. He cited Ajoyi v. Jolayemi [2001] 5 SC (Pt. 11) 44 and Babayeju v. Ashamu [1998] 7 SC (Pt. 1) 166 at 167 and referred the court to section 14 of the Trade Disputes Act. He urged the court to hold that the 2nd respondent/applicant is not a proper or desirable, nor a necessary, party having regard to the documentary evidence before the court. He argued that this action can succeed and the judgment successfully executed without joining the 2nd respondent/applicant. He finally prayed the court to strike out the name of the 2nd respondent/applicant and award substantial costs against the claimants/respondents. In his written address, counsel to the claimants/respondents stated that the claimants were employees to the respondents/applicants who contrary to the terms and conditions of; service binding the parties refused, neglected and/or omitted to pay the claimants/respondents' salary arrears from February 1999 till date. The claimants/respondents then formulated two issues for determination as follows - (a)Whether the 2nd respondent/applicant is a proper, desirable and necessary party in the circumstances of this case. (b) Whether in the face of the uncontroverted paragraphs 5th – 8th of the respondents' counter-affidavit by the applicants not amount to subversion of the intendment of section 132 of the Evidence Act in the circumstances of this case". On issue 1, counsel to the claimants/respondents submitted that the courts have the responsibility to ensure that necessary parties to a suit are joined and that a necessary party is one whose presence is essential for the complete determination of the claim before the court. He cited the case of Ogolo v. Fubava [1994] 1 NWLR (Pt. 321) 404 and Ugorji v. Onwu [1991] 3 NWLR (Pt. 178) 177. He argued that he 2nd respondent/applicant in this suit must be accorded the opportunity .of being heard in this matter because his right and interest is direct and shall be affected by the decision of the court. That the issue involved in this suit is the claimants/respondents entitlements having worked diligently for the respondents/applicants who are now repudiating their liabilities. On issue 2, counsel made reference to paragraphs 5-8 of the counter-affidavit and Exhibit AOB 1 and AOB 2. As we indicated earlier, there is no counter-affidavit filed in opposition to this motion before this court. Counsel also referred to the case of Alfa v. Atanda [1993] 5 NWLR (Pt. 296) 726 and contended that it is not possible for the court to adjudicate or settle the issues in this matter unless the 2nd respondent/applicant is made a party so that the proceedings/judgment shall not be rendered nugatory. He argued that judgment cannot be successfully executed without joining the 2nd respondent/applicant. Counsel referred to the ruling of this court in the case of Capt. Tony Oghide & ors v. Shona Jason Nig. Ltd & AVM Femi John Femi unreported Suit No. NIC/3/2008 delivered on July 18, 2008 where this court upheld the labour rights of workers even though the name of the 2nd defendant/applicant was struck off the suit. Counsel finally urged the court not to strike out the name of the 2nd respondent/applicant. We have carefully considered the submissions of counsel in this matter, both oral and written. The issue for resolution is whether the 2nd respondent/applicant is a necessary party to this action. This cannot be resolved without stating what a cause of action is, which has been defined by the Supreme Court in the case of P. W. Udoh Trading Company Ltd v. A here [2001] 11 NWLR(Pt. 723) 113 at 129 as- a combination of facts and circumstances giving rise to the right to file a claim in court for a remedy. It includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed. To examine whether the claimants/respondent have a cause of action against the 2nd respondent/applicant, the proper document to look at is the originating process which in this instance is an application brought pursuant to section 15(1) and (2) of the Trade Disputes Act Cap 432 LFN 1990 seeking the interpretation of "Chapter 1 (company obligation) (a) (b) and (e), Chapter 2 section 7(a) & (b) (salaries & wages) and Chapter 6 section 5(a) (Retirement Benefit)" of the terms and conditions of service for junior and senior staff of Concord Press of Nigeria Limited. Paragraph 5 of the supporting affidavit to the originating application sworn to by Gabriel Erapi on the 28th of October 2002 is reproduced as follows - 5. That the 2nd respondent is the chairman of the reconstituted board of directors of the 1st respondent and is also the alter ego of the 1st respondent company. From the originating process, the claimants/respondents are activating the interpretation jurisdiction of the court. There is no claim against the 2nd respondent/applicant; neither is any wrong alleged against him. As regards the claimants/respondents' deposition in paragraph 5 of its supporting affidavit reproduced above, we have looked at Exhibit A attached to the affidavit in support of this motion. The 2nd respondent/applicant is not listed as a director in the particulars of directors (form C07) of the 1st respondent/applicant. And there is nothing on record to show that there is a change in form CO7. This shows that the 2nd respondent/applicant is not a director of the 1st respondent/applicant. The 1st respondent/applicant is a juristic person and for all purposes vested with separate legal personality and identifiable by its registered name and fully answerable for its actions and/or wrong doings. See Salomon v. Salomon, supra. The law is also settled that a person is a necessary party to an action where it is desirable that he should be bound by the result and where the question in controversy cannot be effectually and completely adjudicated upon and settled unless he is a party. See Green v. Green [1987] 3 NWLR (Pt. 61) 480, Peenok Investments Ltd v. Hotel Presidential Ltd [1982] 12 SC 1 and Ige v. Farinde [1994] 7 NWLR (Pt. 354) 42. The principles guiding the joinder of parties are as follows: 1. Is the cause or matter liable to be defeated by the non-joinder? 2. Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as a defendant? 3. Is the third party a person who ought to have been joined as a defendant? 4. Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter?. In the instant case, we answer questions 1, 3 and 4 of the guiding principles for the joinder of parties set out above in the negative and question 2 in the affirmative. We, therefore, hold that the 2nd respondent/applicant is not a necessary/proper party to this suit. The name of the 2nd respondent/applicant, Mr. Kola Abiola, is hereby struck out for misjoinder. All the court processes are to be amended to read only the name of the 1st respondent/applicant, Concord Press of Nigeria Limited. We make no order as to cost. Ruling is entered accordingly. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Hon. Justice F, I. Kola-Olalere Judge Judge Hon. Justice 0. $.. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge