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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: March 18, 2015 SUIT NO. NICN/LA/389/2013 BETWEEN BOLA ESOHE JOLAOLUWA - CLAIMANT/APPLICANT AND DELOG NIGERIA LIMITED - DEFENDANT/RESPONDENT REPRESENTATION RULING MOTION ON NOTICE BROUGHT PURSUANT TO ORDER 3 RULE 3; ORDER 11; ORDER 15; ORDER 26 RULE 13 OF THE NATIONAL INDUSTRIAL COURT RULES 2007 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT 1. An order joining Chevron Nigeria Limited of 2 Chevron Drive Lekki Peninsula Lagos as a defendant in this suit. 2. An order granting leave to the claimant/applicant to amend the amended statement of facts in the manner shown in Exhibit BT herein attached. 3. An order granting leave to the claimant/applicant to file a fresh witness statement on oath in support of the amendment. And for such further or other orders as the Honourable Court may deem fit to make in the circumstances of the case. ISSUES FOR DETERMINATION: Whether there is substantial reason to justify the Applicant’s application seeking to join Chevron Nigeria Limited as a defendant in this suit? Whether there is substantial reason to justify the Applicant’s application seeking leave to amend its amended statement of facts? Whether there is substantial reason to justify the Applicant’s application seeking leave to file a Fresh Witness Statement on oath. ARGUMENT: Whether there is substantial reason to justify the Applicant’s application seeking to join Chevron Nigeria Limited as a defendant in this suit? A party sought to be joined to a suit must be a person whose presence is necessary as a party. The only reason which makes it necessary to make a person a party to an action is that he would be bound by the result of the action and the question to be settled. There must be a question in the action which cannot be effectively and completely settled unless he is a party. The applicant submits that the joinder of Chevron Nigeria Limited will enable the Court to effectively or completely adjudicate or settle all the questions involved in this suit with finality. In the case of FOLAWIYO [1991] 7 NWLR PT. 202 237 CA, it was held that a person will be joined as a party to an action if his presence before the court is necessary to enable the court properly determine the matter before it once and for all or where the plaintiff will be bound or is likely to be affected by the result of the decision of the court. Sulu-Gambari JSC at pg 244 paras. G-H said “In holding that a person who is not a party ought to be added, the court must be able to find either that he ought to have been joined or that his presence before the court may be necessary in order to enable the court effectively and completely adjudicate upon and settle all questions involved in the cause or matter. It becomes pertinent to make a person a party to an action where it can be said that the person would be likely affected by the result of the decision of the court”. It was further held that a person may be joined as a party to an action if he will be affected directly, legally or financially by any order made or that is likely to be made by the court in the proceedings. The Applicant refers also to the following cases: Oyedeji Akanbi (Mogaji) & Ors. v. Okunlola Ishola Fabunmi & Ors [1986] 2 SC 431; Bismillahi v. Yagba-East L.G. 2003 4 NWLR Pt. 810 P. 334. Whether there is substantial reason to justify the Applicant’s application seeking leave to amend its amended statement of facts? The court has the power to allow a party to amend his pleadings. The source of the power of the court is provided in Order 3 of the National Industrial Court Rules 2007. Order 3 (3) provides that: “National Industrial Court Rules 2007’s pleadings. The source of the power of the court is provided in inancially by any order made or that is likely to be made by the court in the proceedings i.e the coamending it”. The applicant respectfully submits, based on the above provision, that this Honourable Court is empowered to grant this application. The application to amend is brought essentially, to bring all the necessary facts before the Honourable Court and to determine the question in controversy between the parties as regards the claims of the claimant. Generally, the application should be allowed, unless it would bring injustice to the respondent, which it is submitted, is not the case in this matter, because it is equally in the interest of the respondent that all the facts and questions be brought before this Honourable Court, so that this Honourable Court can determine same in order for the parties to be bound by the decision of this Honourable Court. The applicant for the reasons asserted above, is also not acting mala fide, and has brought this application neither to delay the suit nor to cause any injury to the respondent. It is further submitted that in consideration of the grant of the application, it is for the respondent to adduce reasons why the application should not be granted by the Honourable Court and not for the applicant to convince the Honourable Court that they shall suffer no injustice if the application is granted. In the case of Amadi v. Thomas Aplin & Co. Ltd. [1972] 1 All NLR (pt. 1 ) 409, the Supreme Court held it contrary to the Rules for a trial judge, at any stage of the proceedings before judgment is delivered, to refuse a party’s application for leave to amend his pleadings if the facts sought to be pleaded are such as would enable issues to be properly joined between the parties in question, in controversy between them, unless the applicant acts mala fides or has by his blunder caused some injury to the other party which cannot be compensated by costs or otherwise. Whether there is substantial reason to justify the applicant’s application seeking leave to file fresh witness statement on oath. The applicant submits that the power of the court to grant leave to file fresh witness statement is implicit from the power of court to grant an amendment as the fresh statement on oath to be filed is evidence in support of the amendment now sought. It is in the interest of justice and fair hearing that the applicant be allowed to file the fresh statement on oath in support of its claim. Respectfully the applicant is not acting malafide and it is in the interest of justice that this application be granted and we urge the Honourable Court to grant the application. CONCLUSION Respectfully, the applicant on the facts contained in this application present a strong case to warrant this Honourable Court to grant the prayers sought and we therefore urge the Honourable Court to so do. DEFENDANT/RESPONDENT WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT INTRODUCTION The defendant/respondent in response to the claimant/Applicant’s motion on notice dated 14th May, 2014 filed a 12 paragraphs counter-affidavit in opposition to the same and rely upon all paragraphs of the said counter-affidavit. STATEMENT OF FACTS We adopt herein the facts as stated in the 12 paragraphs Counter-Affidavit deposed to by one Kehinde Akeremale. ISSUES FOR DETERMINATION Apart from the three (3) issues raised by the claimant, the respondent will raised the following issue as additional issue namely: 1. Whether the claimant instant application for Joinder and amendment dated 14th May, 2014 constitutes an abuse of court process. ARGUMENTS With respect, my Lord, our argument will deal in the first instance with the three issues raised by the claimant namely: (a) Whether there is substantial reason to justify the applicant’s application seeking to join Chevron Nigeria Limited as a defendant in this suit. (b) Whether there is substantial reason to justify the applicant application seeking leave to amend it amended statement of facts? And (c) Whether there is substantial reason to justify the applicant’s application seeking leave to file a fresh witness statement on oath On Issue No. 1 raised by claimant: Whether there is substantial reason to justify the applicant’s application seeking to join Chevron Nigeria Limited as a Defendant in this suit. Respectfully, my Lord, in dealing with this issue as raised by the claimant/applicant it is the defendant/respondent submission that the supporting affidavit of the claimant particularly, paragraph 6 of the affidavit in support of 14th May, 2014 whereby the claimant stated that it was the applicant herself fully aware of her legal rights that instructed the law firm of Argyle & Clover to file a notice of discontinuance to discontinue this suit against Chevron Nigeria Limited and by Order of this Honourable Court on 19th November, 2013, Chevron Nigeria Limited was struck out as a defendant in this suit. The legal effect, my Lord, Sir, of this singular action of the claimant is that Chevron Nigeria Limited who had joined issues with the claimant in respect of this suit was struck out as a party in this suit by Order of this Honourable Court. This invariably means that Chevron ceased to be a party and/or a necessary party to the suit. It is our further submission that the option to strike out the name of Chevron Nigeria Limited from this suit is a legal strategy adopted by the claimant and was never an error. Therefore, the claimant cannot be allowed to approbate and reprobate on the issue of Chevron Nigeria Limited and must stand and fall on her choices. With respect my Lord, we refer the Honourable Court to the Supreme Court of Nigeria decision in the case of Akanbi v Alao [1989] 3 NWLR (Pt. 108) P. 118 at 140; [1989] 2 NSCC (Pt. 2) page 263 at 275 where per Craig JSC (as he then was) held as follows: “In my view when a party makes a choice which the law requires him to make and that choice was acted upon by both parties in the suit and by the court, the party who made the choice cannot turn around afterwards and claim that he had made a mistake such a mistake of law will not excuse the part”. It is a matter of Law that there must be an end to litigation which is expressed in the latin maxim “interest rei publicae ut sit finis litium”. The defendant/respondent will submit that this Honourable Court cannot on one breath discontinue this action against the party sought to be join. Chevron Nigeria Limited and in another breath join the party again in the same suit. This is because this court after making the Order of discontinuance on the 19th of November, 2013 if “functus officio” and has no competence or jurisdiction to give another decision joining Chevron Nigeria Limited again on the same matter. The claimant must stand or fall on the case presented before the court and the choices made there on as the court is not a Lottery House or a game of Chess but deals with serious matters. We commend the Honourable Court to the Court of Appeal decision in the case of Onyemobi v President O.C.C [1995] 3 NWLR (Pt. 381) P 50 at P. 58 where per Tobi J.C.A (as he then was) held as follows: “Functus officio simply means task performed therefore applying it to judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words, once a judge gives a decision or makes an order on a matter he no longer has the competence or jurisdiction to give another decision or order on the same matter. By the first decision or order, he is said to be functus officio”. We submit further, that the reasons behind this principle of functus officio is as follows: (a) The court like the parties cannot be allowed to blow hot and cold with the same breath. (b) The court cannot sit on appeal over his own judgment or order. (c) It is the Appellate Court that can pronounce on the said order or decision to discontinue this action against Chevron Nigeria Limited who had earlier joined issues with the claimant before being struck out from this suit. It is also our submission that the issue of Chevron being a proper party, necessary party or even a party to this suit has been settled by the legal option adopted by the claimant to discontinue this suit against Chevron Nigeria Limited and consequently, the Claimant is estopped by the doctrine of issue estoppel and estoppel by conduct. We refer the Honourable Court to the Supreme Court decision in Iga v Amakiri [1976] 11 SC at page 11-12 on estoppel by conduct. On the doctrine of issue estoppel the Suprme Court in the case of Chief Daniel Allison Ibuluya & Ors v Tom Benebo Dikibo & Ors [1976] 6 SC page 97 at page 104 held as follows: “It is not essential or even relevant to prove that the decision relied upon to found estoppel is itself correct, or well founded in law or fact; if it is pronounce as a final judicial decision, by a tribunal having jurisdiction, as to the same question, and between the same parties, it will be conclusively deemed correct, as between these parties, unless and until set on appeal”. (The Supreme Court quoting Spencer-power and Turner, res judicata, second edition page 14 paragraph 15 in the instant case referred to). In the circumstances therefore, the claimant’s arguments on this issue are misconceived as it is not a fresh application for joinder made after the claimant by her own choices opted to discontinue against a party. Also, all cases cited by the claimant on this point are not applicable and is of no moment. On Issue No. 2: Whether there is substantial reason to justify the Applicant's application seeking Leave to amend its Amended Statement of Facts? It is our submission with respect that there are no substantial or weighty reason why the claimant is seeking further amendment of the statement of facts SAVE that the claimant having elected to discontinue the instant suit Chevron Nigeria Limited now want to amend to bring back Chevron Nigeria Limited whom the court by its decision on the 19th of November, 2013 has struck out as a party to the instant suit. It is therefore, our submission that the amendment sought is tailored and orchestrated to overreach the defendant/respondent who has raised preliminary objection bothering on jurisdiction and the right and capacity of the claimant to sue the defendant who is an agent of a disclosed principal. Thus, the amendment is brought in bad faith. In the circumstance therefore, all the arguments proffered by the Applicant on this issue in paragraphs 4.4 to 4.8 and the case of Amadi (supra) cited are of no moment and should be discountenanced. On Issue No. 3: Whether there is substantial reason to justify the applicant’s application seeking leave to file fresh witness statement on oath. Respectfully, my Lord, it is our submission that the claimant contrary to here assertions in paragraphs 4.9 to 4.11 has not adduced any justiciable reason of why a fresh statement on oath should be filed than that it want to join Chevron Nigeria Limited as a party in this suit after asking, requesting and praying this Honourable Court having full awareness of the legal option to strike out the name of the said Chevron Nigeria limited from the instant suit. The claimant must not be allowed to approbate and reprobate at the same time. There must be an end to litigation particularly when pitied against the fact that the claimant’s claimed is based on a Collective Agreement whose enforceability is only by way of negotiation between the Union and the Employer and not even by the claimant who has no Locus Standi in the matter of the enforceability of a Collective Agreement. The defendant/respondent will in three circumstances urge this Honourable Court to resolve all three (3) issues raised by the claimant against the claimant. This brings us to the additional issue raised by the respondent whether the instant application dated 14th May, 2014 constitutes an abuse of court process. Respectfully, my Lord, it is the respondent submission that since the claimant’s application is brought in bad faith in other to overreach the respondent preliminary objection on jurisdiction dated 7th May, 2014 and also on a matter that the court has previously given a decision concerning the striking out of Chevron Nigeria Limited as a party in this suit, the instant application no doubt constitutes an improper use of judicial process and therefore an abuse of judicial process. See the case of Africa Recorp v JDP Const Nig Ltd [2003] 13 NWLR (Pt. 838) at page 609. In the Supreme Court of Nigeria decision in Ex-parte Salami Adeshina [1993] 4 NWLR (Pt. 442) P. 2544 per BELGORE, J.S.C held that: “When a matter is kept in litigations by constant suits in respect of the same subject matter and between the same parties and/or their privies the courts process of adjudicating may thereby be abused and scandalized”. In the circumstances, therefore, the attempt by the claimant to bring back from the dead a party she has requested the court to discontinue against in the same suit constitutes a clear case of abuse of process and consequently, this issue should be resolve against the claimant. CONCLUSION Sequel to the foregoing analysis and the judicial authorities canvassed herein, we humbly urge this Honourable Court to urge this Honourable Court to grant the Respondent’s prayers by striking out the instant application with substantial costs against the claimant. Respectfully submitted. CLAIMANT/APPLICANT’S REPLY ISSUES FOR DETERMINATION The respondent by its written address dated 22nd May 2014 and filed on 23rd May 2014 adopts the issues formulated by the applicant in its written address in support of the motion dated 14th May 2014 and raises an additional issue for determination to wit: (i) Whether the Applicant’s application for joinder and amendment dated 14th May 2014 constitutes an abuse of court process. The crux of the respondent’s opposition is not that Chevron Nigeria Limited is not a necessary party but that the applicant having discontinued the action against Chevron Nigeria Limited cannot proceed to re-litigate the action against Chevron Nigeria Limited and that this Honourable Court is functus officio with respect to the application for joinder. The applicant submits that based on the foregoing, the issues that have arisen from the respondent’s submission necessitating a reply are: (i) Whether the applicant can relitigate this action against Chevron Nigeria Limited whom the action had been discontinued against? (ii) Whether this Honourable Court is functus officio to entertain the applicant’s application for joinder of Chevron Nigeria Limited? The applicant shall address these issues hereunder? EXTRANEOUS MATTERS IN THE RESPONDENT’S COUNTER-AFFIDAVIT Paragraphs 5, 7, 8, 9, 10 and 11 of the affidavit in support of the respondent’s counter-affidavit contain inferences, arguments, conclusions and law and same should be struck out by this Honourable Court. We refer to the case of G.S. & D. Ind. Ltd v NAFDAC [2012] 5 NWLR (Pt. 1294) 511 pp. 546 - 547 where it was held: “An affidavit that offends the provisions of the Evidence Act will be struck out without more. See N.P.A.S.F v Fasel Services Ltd [2001] 17 NWLR (Pt. 742) 261- 291 and N.D.I.B .v. Fembo Nig Ltd [1997] 2 NWLR (Pt. 489) 543 at 560”. ARGUMENT ON ISSUE ONE (1) Whether the applicant can relitigate this action against Chevron Nigeria Limited whom the action had been discontinued against? The applicant submits that in determining whether the applicant has the right to seek an order joining Chevron Nigeria Limited sequel to discontinuing the action against it, the court has to examine the provision of the Rules of Court upon which the discontinuance was made. The applicant’s notice of discontinuance filed on 29th October 2013 discontinuing the action against Chevron Nigeria Limited was brought pursuant to Order 19 Rule 17 of the National Industrial Court Rules 2007 which provides as follows: “Where before the date fixed for hearing or judgment, any party to the proceedings desires to discontinue a claim or withdraw any part of it, such party shall give notice of discountenance or withdrawal in writing to the court and to the other party. The court shall upon the discontinuance or withdrawal make such order or orders as may seem just”. Pursuant to the above order, the notice of discontinuance was brought to the attention of this Honourable Court and Chevron Nigeria Limited was struck out as a party to this suit. It is trite law that where an action is discontinued against a party and the party consequently struck out from the suit, a claimant reserves the right to relitigate the suit against such party that has been struck out. In the Court of Appeal decision in IGP v Aigbiremolen [1999] 13 NWLR (Pt. 635) 443, it was held as follows: “It is settled law that there is a clear distinction between striking out and dismissing an action. Whereas a matter struck out can be resuscitated. Also while leas of res judicata or estoppel per rem judicata will apply to a matter dismissed, such will not be applicable to a case struck out. In order words, an order of dismissal puts an end to the matter while an order striking out or non¬-suit keeps the matter alive”. See Egwu v Modunkwu [1997] 4 NWLR (Pt. 501) 574; Craig [1966] 1 All NLR 173, Ikoro v Safrap Nig. Ltd. [1977] 2 S.C. 123; Ogbechie v Onachie [1988] 1 NWLR (Pt. 70) 370; and Ishola v Ajigboye [1994] 6 NWLR. Placing reliance on the above cited authorities, the applicant submits that discontinuance or withdrawal of an action against a party and the subsequent order of court striking out the name of such party sequel to the discontinuance or withdrawal notice, cannot be used to bar further or subsequent action over the same subject matter. In other words, once an action under this limb is discontinued, it can be re¬litigated and, by implication, the defence of estoppel or res judicata cannot be raised against a suit struck out by virtue of a withdrawal or discontinuance notice. The applicant submits that the case of Akanbi v Alao [1989] 3 NWLR (Pt. 108) P.118 at 140 cited by the respondent at paragraph 4.5 of its written address is not applicable to this case as the facts therein are clearly distinguishable. In that case after the suit had been tried on the merit in the court of first instance, the defendants were seeking to admit fresh evidence at the appellate court and this led to Craig JSC’s decision that when a party makes a choice which the law requires him to make and that choice was acted upon by both parties in the suit and by the court, the party who made the choice cannot turn round afterwards and claim that he had made a mistake as such a mistake of law will not excuse the party. The applicant submits premised on the above submissions that the applicant’s right to relitigate this action against Chevron Nigeria Limited is not lost as the law and a plethora of judicial cases have held that the right of a claimant who withdraws or discontinues an action to relitigate same is preserved and such withdrawal or discontinuance cannot operate as a bar to re-litigating such action. ARGUMENT ON ISSUE TWO (2) Whether this Honourable Court is functus officio to entertain the applicant’s application for joinder of Chevron Nigeria Limited? The principle of “Functus Officio” is akin to the doctrine of estoppel to the effect that where there has not been judicial examination and or determination of the issues between the parties, issue of estoppel and by extension the principle of “functus officio” would never arise. We refer to the case of Hufuagi v Anyelso [2002] FWLR (Pt. 48) 1840 at 1847. In the case of Odigwe v Judicial Service Commission, Delta State [2011] 10 NWLR (Pt. 1255), Amiru Sanusi, J.C.A held as follows: “The phrase “functus officio” is a Latin expression simply meaning “task performed”. In legal or judicial parlance it means a Judge cannot give a decision or make an order on a matter twice. In other words it connotes that a court after finally adjudicating on a matter after consideration of the issues canvassed by parties before it on the merit, it cannot rehear or re-decide the matter again or twice. For example a judgment in default of consideration of an application to relist a motion which was struck out and NOT dismissed which was not heard on the merit e. g. due to want of appearance by party or parties or struck out after being partly heard for whatever reason, does not render the court “functus officio” since it has not been finally determined or decided by the court. It is only where a court delivers judgment/ruling on a matter it heard in the merit that it becomes functus officio. It then ceases to be seized of the matter and can thus not re-decide, reopen or rehear it for whatever reason. This is more so because a court cannot sit on appeal on its own decision or review its decision. See the cases of Ogboru v Ibori [2005] 13 NWLR (Pt. 942) 319; Sun Insurance (Nig) Plc v L.M.B.S. Ltd [2005] 12 NWLR (Pt. 940) 608; Ukachukwu v Uba [2005] 18 NWLR (Pt. 956) 1; Ubeng v Usua [2006] 12 NWLR (Pt. 994) 244; Mohammed v Husseini [1998] 13 NWLR (Pt. 584) 108”. Relying on the above pronouncement of the Appellate Court, the proper question to ask is whether the applicant has earlier brought an application seeking to join Chevron Nigeria Limited as party to this suit and if this Honourable Court has ever decided the issue whether Chevron Nigeria Ltd be joined as a party. Parties are bound by the record of this Honourable Court and clearly this is the first time the issue of joinder of Chevron Nigeria Ltd has been raised in this suit and there is no Ruling, Judgment or decision of this Honourable Court on this issue thus the court cannot be functus officio with regards the applicant’s application. It is the respondent’s contention that the Order of the Court striking out Chevron Nigeria Ltd pursuant to a notice of discontinuance is tantamount to this Honourable Court being functus officio. The applicant submits that clearly the Respondent’s argument is misconceived and not tenable in law in view of the fact that this Honourable Court merely struck out the name of Chevron Nigeria Ltd as a party to this suit without giving any considered Ruling or Judgment on the merit. We refer to the case of Odigwe v Judicial Service Commission. Delta State (Supra). In the case of Ezeonu v Agheze [1991] 4 NWLR (Pt. 187) 631, the Court of Appeal made it clear that it is an improper procedure for a court to deliver a Ruling or Judgment on a notice of discontinuance when it held as follows: “What baffles me in this matter is the curious procedure adopted by the learned trial Judge in hearing both counsel on a simple application of notice of discontinuance and tatting the much trouble of writing a ruling. Though he used the old rules, he rightly pointed out thus: If one looks at Order Rule 1, it is clear that after the notice of discontinuance was filed by counsel and was served on the other party it was only fixed for it to be struck out in the open court. That is the correct position of the law, both under the old rules and under the new rules. The position is so clear that once a notice of discontinuance is filed before the date fixed for hearing, the matter automatically comes to an end with a formal order of court. Accordingly, the learned trial Judge had no business with a ruling not to talk of the inordinate ruling of 4/5/89 that he gave. In my view, it was the cautious procedure adopted by the learned trial Judge which culminated in the ruling that resulted in the confusion of the parties. It is a pity”. The Applicant submits that the case of Iga v Amakiri [1976] 11 SC referred to by the Respondent at Paragraph 4.10 of its written address is irrelevant as same deals with estoppel by conduct and not issue estoppel which is the issue before this Court. Also the pronouncement in the case of Chief Daniel Alison Ibuluya & Ors v Tom Benebo Dikibo & Ors. referred to in the same paragraph by the Respondent is clearly distinguishable and not applicable as same refers to a final judicial decision of a court. It was based on the respondent’s misconceived submission that the applicant does not have a right to relitigate the action against Chevron Nigeria Limited and that this court is functus officio that it concluded that the application to join Chevron Nigeria Limited is an abuse of court process. The applicant submits that the application is not an abuse of court process as the respondent’s arguments are erroneous and far from the correct position of the law on the effect of a notice of discontinuance and the principle of functus officio. The applicant has fully responded to the issues and arguments canvassed by the respondent; same being without merit and substance. The applicant therefore urges this Honourable Court respectfully, to uphold the arguments of the applicant and grant the applicant’s application accordingly.