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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: MAY 5, 2015 SUIT NO: NICN/LA/306/2013 BETWEEN 1. Mr. Emmanuel Oyibo 2. Mr Ahaba Okwah 3. Mr. Donatus Ogbuike (For themselves and on behalf of the former management employees of MRS Oil Nigeria Plc who transited from Chevron Oil Nigeria Plc) - Claimants AND 1. MRS Oil Nigeria Plc (formerly Chevron Oil Nigeria Plc) 2. MRS Holdings Nigeria Limited 3. Corlay Global S.A 4. Chevron Africa Holdings Limited 5. Chevron Nigeria Limited 6. Chevron Corporation - Defendants REPRESENTATION Chief Mary M. Bassey, and with her are L. N. C. Mbanefo, Miss Abimbola Oroyo, Miss O. J. Uzoh and Oladimeji Adewole, for the claimants. Miss Nkechi Obichere, for the 1st – 3rd defendants. C. Ikwuazom, and with him are Hamid Abdulkareem, Mrs. O. Ogunrinde and Miss K. Joseph, for the 4th and 6th defendants. Ladipo Soetan, and with him are Miss Benigna Ejimba and Olamide Balogun, for the 5th defendant. RULING The claimant took up a complaint against the defendant dated variously as 6th June 2013 and 10th June 2013 and filed on 10th June 2013. By the complaint and its accompanying statement of facts dated 6th June 2013, the claimant is praying for the following reliefs – 1. The settlement of an average of seven (7) years total annual emolument severance package to be paid to each transited employee whose services were terminated and the claimants state that they will at the trial set out a schedule for such outstanding payment. 2. The sum of N5,728,207,635.80 being the total amount due to the said transited management employees as severance pay. 3. The sum of N113,256,279.00 being the outstanding rental payment due to the claimants. 4. The sum of N285,452,123.25 being the total gratuity amount unpaid to the claimants under options A and B of the Management/Separate Agreement. 5. The sum of N281,589,149.05 being the total gratuity amount unpaid to the claimants under option C of the Management/Separation Package Implementation Guideline. 6. The sum of N2,000,000,000,000.00 being the calculated damage due to the claimants as general damages. 7. The sum of N20,000,000.00 being costs of this suit. 8. The claimants state that they will at the trial ask the Honourable Court to award interest on the total sum claimed at 23% or at the prevailing bank rate at the date of judgment. In reacting to the claimants’ case, the 4th and 6th defendants filed a preliminary objection dated and filed on 14th October 2013, which is brought pursuant to Order 15 of the National Industrial Court Rules 2007 and under the inherent jurisdiction of the Court. By the preliminary objection, the 4th and 6th defendants/applicants are praying that – 1. This Court lacks the jurisdiction to entertain the entirety of this suit, in consequence of which this suit is incompetent and is liable to be struck out. OR IN THE ALTERNATIVE 2. This Court lacks the jurisdiction to entertain this suit as presently constituted against the 4th and 6th defendants/applicants, in consequence of which this suit is liable to be struck out/dismissed as against the 4th and 6th defendants/applicants. 3. And for such further or other orders as this Court may deem fit to make in the circumstances. The grounds for the preliminary objection are as follows – a) The claimants’ suit as presently constituted is not justiciable. b) The claimants’ suit as presently constituted discloses no reasonable cause of action against the 4th and 6th defendants/applicants. In support of the preliminary objection are an affidavit and a written address. In reaction to the 4th and 6th defendants’ preliminary objection, the claimants filed on 18th February 2014 a counter-affidavit and a written address. The 5th defendant on its part filed a motion on notice dated 8th May 2014 but filed on 13th May 2014; and brought pursuant to Order 11 Rule 1 of the NIC Rules 2007, section 6(6) of the 1999 Constitution, as amended, and under the inherent jurisdiction of the Court praying for – 1. An order striking out the name of 5th defendant/applicant from the suit. 2. And for such further order or other orders as this Court may deem fit to make in the circumstances. The grounds upon which the motion is brought are – 1) The suit discloses no reasonable cause of action against the 5th defendant/applicant. 2) The absence of a cause of action against the 5th defendant/applicant renders this Court without jurisdiction in respect of the 5th defendant/applicant. 3) The 5th defendant/applicant is not a proper party to the suit. In support of the motion is a 7-paragraphed affidavit deposed to by one Miss Anuoluwapo Odumosu (a legal practitioner in the law firm of the 5th defendant’s counsel) and a written address. In opposing the 5th defendant’s motion on notice, the claimants filed a six-paragraphed counter-affidavit deposed to by Mr. Monday Emmanuel, a Litigation officer in the chambers of the claimants’ solicitors with accompanying exhibits and a written address. 4TH AND 6TH DEFENDANTS’ SUBMISSIONS The 4th and 6th defendants then framed one issue for the determination of the Court i.e. whether this Court has jurisdiction to entertain this suit. This sole issue was, however, addressed under two sub-issues: absence of locus standi; and absence of cause of action. Regarding the absence of locus standi, to the 4th and 6th defendants, it is clear from paragraphs 11 – 13 of the claimants’ statement of facts that their claims in this suit are premised on three documents: (i) the Separation Package Agreement dated 7 October 2008, (ii) the Management Severance/Separation Package Implementation Guidelines dated 27 October 2008 (the “Management Implementation Guidelines”), and (iii) the Share Purchase Agreement dated 16 September 2008. That the applicants will demonstrate that the claimants lack the legal capacity to enforce any alleged rights arising under the Separation Package Agreement and the Management Implementation Guidelines. The 4th and 6th defendants continued that for a plaintiff’s claim to be properly before the Court, it must be shown to the Court that the plaintiff has the requisite legal capacity to institute the suit. That the establishment of a legal capacity to bring an action before the Court is a condition precedent to the determination of a suit on the merit, relying on Thomas v. Olufosoye [1986] 1 NWLR (Pt. 18) 669. That in B.M. Ltd v. Woermann Line [2009] 13 NWLR (Pt. 1157) 149 at 199, the Supreme Court considered the issue of locus standi and held that – …locus standi is unequivocally a threshold issue. It is not dependent on the merits of a case but on the showing of the Plaintiff’s case in his statement of claim. In other words, the question whether a plaintiff has locus standi to sue is determinable from the totality of the averments in the statement of claim. And there is no requisite locus standi to sue by a plaintiff it is not necessary to consider whether there is a genuine case on the merit. The Supreme Court held further at pages 179 – 180 as follows – The term locus standi denotes the legal capacity to institute an action in a court of law. It is a status which the plaintiff must have before being heard in court. It is a condition precedent to determination on the merits. In order to achieve the status of locus standi, the claim of the plaintiff must reveal: (a) A legal or justiciable right. (b) Show sufficient or special interest adversely affected. (c) Show a justiciable cause of action. That the Separation Package Agreement which forms the foundation of the claimants’ claims in this suit is in the form of a “collective agreement” between the 1st defendant, PENGASSAN and NUPENG purportedly on behalf of the employees of the 1st defendant (including the claimants). That it is settled that a “collective agreement” is the result of a collective bargain entered into by a trade union on behalf of its members with their employer. The Management Implementation Guidelines purport to set out further terms upon which the collective agreement embodied in the Separation Package Agreement will apply to the claimants. As regards the legal nature of “collective agreements”, that the Supreme Court in Shuaibu v. NAB Ltd [1998] 5 NWLR (Pt. 551) 582 at 600 – 601 held as follows: “a collective agreement...is at best a gentleman’s agreement an extra-legal document totally devoid of sanctions”. Indeed that the position of the law on the proper party to enforce a collective agreement has been clarified by the Court of Appeal in the case of UBN v. Edet [1993] 4 NWLR (Pt. 287) 288 at 298 where the Court held that – I feel obliged to say, with due respect, that the learned Judge misunderstood the purposes and effect of Exhibit 13. It is a collective agreement between employers and employees in their capacities as bodies of certain institutions. Such collective agreements are not intended or capable to give individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. In other words, failure to act in strict compliance with a collective labour agreement is not justiciable...It appears that whenever an Employer ignores or breaches a term of that Agreement, resort could only be had, if at all, to negotiation between the Union and the Employer, and ultimately to strike action should the need arise and it be appropriate. It is not for any individual employee to found an action on the Agreement to which he is not a party. Furthermore, that in Anaja v. UBA Plc [2013] 30 NILR (Pt. 87) 338 at 361 the Court held that: Collective agreements on their own do not give an individual employee, the right to bring an action in respect of any breach of its terms, unless they are accepted to form part of the terms of employment. This is good law because the agreement is not made between the employer and his employee and the law is that in contract, a non-party cannot enforce it, even if it was made for his benefit. The 4th and 6th defendants accordingly submitted that the claimants have not placed before this Court any facts/evidence to show that the Separation Package Agreement (and by extension the Management Implementation Guidelines) they seek to rely upon was incorporated into their individual contracts of employment. That in the absence of any such evidence before this Court, the claimants cannot found an action upon this agreement. The proper parties to seek the enforcement of the Separation Package Agreement (against the 1st defendant) are the parties to the agreement and not a third party beneficiary. That it is also clear that being a gentleman’s agreement only, the mode of enforcement of the Separation Package Agreement can only be by way of negotiation between PENGASSAN and NUPENG and the 1st defendant. Therefore, to the extent that the claimants’ claims are predicated on the Separation Package Agreement and the Management Implementation Guidelines, the 4th and 6th defendants urged the Court to dismiss this suit in its entirety on the ground that the claimants’ claims are not justiciable. On the absence of cause of action, the 4th and 6th defendants submitted that in the event that this Court holds that the claimants’ claims in this suit are justiciable, that the Court should dismiss the suit as against the applicants on the ground that no reasonable cause of action is disclosed against them in this suit. In particular, the applicants submitted that – a) No allegations of wrongdoing whatsoever are made against the applicants in this suit; all the allegations of wrongdoing are against the 1st defendant; b) The applicants are not parties to the Separation Package Agreement and Management Implementation Guidelines; as such, the applicants cannot be sued for the performance of any obligations under the agreements; and (c) The claimants are not parties to the Share Purchase Agreement; as such, they cannot enforce any purported legal rights under this agreement. To the 4th and 6th defendants, the Courts have held severally that a plaintiff can only be said to have a ‘cause of action’ against a defendant when a ‘wrong’ is done to the plaintiff by the defendant, or in the case of an agreement or contract, where a defendant ‘breaches its agreement with the plaintiff’. In other words, it is the facts or combination of facts which gives a plaintiff a ‘right to sue’ a particular defendant or group of defendants, relying on the Supreme Court’s decision in Adekoya v. FHA [2008] 11 NWLR (Pt. 1099) 539 at 557 and 558 where the Court held as follows – A cause of action arises the moment a wrong is done to the plaintiff by the defendant. And the wrong which is the basis of a dispute represents factual situation which entitles the plaintiff to seek a remedy in a court of law by way of enforcement. It is my view that a cause of action arises in a contract when there is a breach of the agreement... Similarly, in Chevron (Nig.) Ltd v. Lonestar Drilling (Nig.) Ltd [2007] 16 NWLR (Pt. 1059) 168 at 176 – 177 the Court held as follows – I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim. The 4th and 6th defendants then submitted that in order for the claimants to disclose a cause of action against the applicants, the claimants must aver to facts in their statement of facts which disclose the existence of a contract between themselves and the applicants, and which the applicants have breached. That a careful perusal of the claimants’ statement of facts dated 6 June 2013 will, however, reveal that the claimants have failed woefully to disclose a cause of action against the applicant. That the following paragraphs of the claimants’ statement of facts are particularly instructive. 11. The Claimants states (sic) that the terms of their engagement by the 1st Defendant arose out of their agitation concerning the proposed sale and transfer of the majority interest of the said defunct Chevron Oil which led to a strike action in order to arrest the situation and maintain a conducive atmosphere for the proposed sale and transfer of the said 60% majority share and to protect the interest of the employees, a Separation Package Agreement dated 7th October, 2008 was entered into between the Management of the Defunct Chevron Oil and all the permanent employees on the payroll of the company including the Claimants. The Claimants will at the trial rely on the said Separation Package Agreement as to its full term and effect. 12. The Claimants further state that in order to ensure that the interest of the employees whose services were to be transferred to the 1st Defendant were well protected set out a Management Separation Package Implementation Guidelines dated 27th October, 2008 which ensured and guaranteed that the transited management employees on grade level 19 and above shall remain with the 1st Defendant for a minimum period of three (3) (sic) for those under option B or six (6) years for those under option C, respectively. 15. That Claimants state that upon transfer of their services to the 1st Defendant, the 1st Defendant formed an intention and indeed reneged on the terms of the Sales Purchase Agreement, Separation Package Agreement, the Management Implementation guidelines and the employee handbook inherited from their employers i.e. Chevron Oil and proceeded to terminate the employment of these employees. 17. The Claimants state that in furtherance of the 1st Defendant’s unilateral intention to terminate the services of the Claimants carried out a selective implementation of the terms of the agreement reached by settling the Nine (9) months rental entitlements due to some of the Claimants under Option A and B and refused to settle those under Option C. 18. The 1st Defendant also failed and or refused to settle the gratuities due to the Claimants several months after the said employees were unceremoniously disengaged from the 1st Defendant's service. 20. The Claimants state that as is the practice in the Oil industry as well as under the provisions of the Labour Law any involuntary/compulsory termination of employment demands that a severance package be settled in favour of the terminated employees but the 1st Defendant has refused to adhere to these proper and well settled principles and has refused to enter dialogue with the Claimants representatives towards agreement on mutually acceptable terms towards implementation. 22. The Claimants state that the 1st Defendant’s refusal to negotiate a severance package agreement with the Claimants representatives constitute (sic) a breach of the contractual agreements signed jointly and or severally by the Defendants. 24. The Claimants state that despite all the efforts by the Claimants to come to an amicable settlement over their outstanding and legitimate entitlements the 1st Defendant has refused to meet with their representatives in order to agree on a fair an agreeable terms (sic) for settlement. To the 4th and 6th defendants, it is evident from the portion of the claimants’ statement of facts reproduced above that there is no allegation of wrongdoing whatsoever against the applicants, all the allegations of wrongdoing being made against the 1st defendant (MRS Oil Nigeria Plc.). That in the absence of any allegation of wrongdoing whatsoever against the applicants in this suit, the claimants have failed to disclose any cause of action against the applicants, citing Chevron (Nig.) Ltd v. Lonestar Drilling (Nig.) Ltd (supra). That the position of the law is trite that where a party has failed to disclose a cause of action, the statement of claim will be dismissed, referring to Thomas v. Olufosoye [1986] 1 NWLR (Pt. 18) 23 – 24 where the Court held that: Where the statement of claim discloses no cause of action and if the court is satisfied that no amendment, however ingenious will cure the defect the statement of claim will be struck out and the action dismissed. The 4th and 6th defendants went on that having established that the claimants have failed to disclose a cause of action against them, the Court should dismiss this suit as against them. For the sake of completeness, they submitted that the fact that the claimants’ claims herein are contractual in nature i.e. arising under the Separation Package Agreement, Management Implementation Guidelines and/or the Share Purchase Agreement also has fatal consequences for the suit as constituted against the applicants. This is because it is clear that – (a) in relation to the Separation Package Agreement and the Management Implementation Guidelines, the only parties to the agreements are Chevron Oil Nigeria Plc (now known as MRS Oil Nigeria Plc i.e. the 1st defendant), PENGASSAN and NUPENG. The Applicants are in no way privy to the said agreement(s), and (b) in relation to the Share Purchase Agreement, the only parties thereto (as averred at paragraphs 8 and 9 of the applicants’ affidavit are the 4th defendant/applicant, Corlay (the 3rd defendant), MRS Holdings Limited (the 2nd defendant) and one Petroci Holding. The claimants are in no way privy to this agreement. That the position of the law in relation to privity of contract is trite and uncontroversial. In Ogundare v. Ogunlowo [1997] 6 NWLR (Pt. 509) 360 at 371, the Supreme Court held, in affirming the decision of the lower Court, as follows – In law, there is privity of contract. It is always between the contracting parties who must stand or fail, benefit or lose from the provisions of their contract. Their contract cannot bind third parties nor can third parties take or accept liabilities under it, nor benefit there- under. Similarly, in B.M. Ltd v. Woermann-Line (supra) at 180, the Supreme Court held as follows – From the foregoing, it becomes really necessary to explain what is privity of contract. The doctrine of privity of contract portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In short, only parties to a contract can sue or be sued on the contract and a stranger can neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or make him liable upon it. Moreover, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract. Also referred to the Court are UBA Plc v. B.T.L. Industries Ltd [2004] 18 NWLR (Pt. 904) 180 at 233 and CAP Plc v. Vital Inv. Ltd [2006] 6 NWLR (Pt. 976) 220 at 264. The 4th and 6th defendants proceeded to submit that they are not being privy to the Separation Package Agreement and/or the Management Implementation Guidelines, the position of the law being that they cannot be sued for the performance of any obligations under the agreements. Indeed, that this Court affirmed this principle in the case of NUHPSW v. Whassan E.N. Limited [2005] 2 NLLR (Pt. 4) 145 at 154 wherein the claimants sought to enforce the terms of a collective agreement against a party who was not shown clearly to be a signatory to the agreement. This Court upheld the preliminary objection of the respondent and held in relevant part as follows – Except for the Minister, any party seeking the interpretation by this court of any collective agreement must show sufficient nexus between the party and the collective agreement. But in view of the fact that the collective agreement cannot be interpreted in vain, the party against whom the interpretation is sought must be shown to be bound by the collective agreement as being a party to it. This is because the principle of the extension of a collective agreement to non-signatories to it is not yet part of the labour law of Nigeria. Similarly, that the claimants not being privy to the Share Purchase Agreement, the claimants cannot enforce any purported legal rights under this agreement. The 4th and 6th defendants then urged the Court to dismiss this suit as against them for lack of a cause of action. CLAIMANTS’ REACTION TO 4TH AND 6TH DEFENDANTS’ SUBMISSIONS In reaction, the claimants first adopted the issues framed by the applicants; and then went on to set the records straight concerning the documents that they seek to rely upon in the substantive suit herein, which are as follows – (i) The sale and purchase agreement dated 16th September, 2008. This document sets out the terms and conditions for the sale of the shares of Chevron Africa Holdings Ltd (CAHL) in Chevron Nigeria Holdings Ltd (CNHL) to MRS Nigeria Holdings Ltd through Corlay Global (3rd defendant). (ii) Separation package agreement, a document that came into being and became relevant after the execution of the sale and purchase agreement. (iii) The management implementation guidelines could also only become relevant if the terms of the sale and purchase agreement had come into force. To the claimants, the 4th and 6th defendants state that the claimants must establish that they have the legal capacity or locus standi to institute this action. To this, the claimants responded that the 4th and 6th defendants at all relevant times were the employers of the claimants, and the relevant documents that form the fulcrum of the issues set out by the claimants for determination before this Court were executed upon the instructions which flow at the instance of the 6th defendant i.e. Chevron Corporation issuing directives to its subsidiaries i.e. the 4th and 5th defendants. That the totality of the averments set out in the statement of claim clearly set out issues that ought to be looked into on the merit. The claimants further submitted that indeed the several legal authorities even those set out by the applicants clearly state that it is the statement of claim that should determine the locus standi or the legal capacity of the claimants to maintain this suit, placing reliance on the cases cited by the applicants. That in Ibrahim v. Osim [1988] 3 NWLR (Pt. 82) 257 at 271, Obaseki, JSC observed as follows – The law is settled that when an objection is raised that the Statement of Claim does not disclose a reasonable cause of action, it is the statement of claim that has to be examined and not the Statement of Defence to ascertain whether there is a reasonable cause of action before the Court. That in determining whether or not a cause of action exists or reasonable cause of action exists, the Court must examine the totality of the writ of summons, which contains the particulars of claims and also the statement of claim. The Court cannot examine pockets of averments in the statement of claim in isolation but in unison and in totality, citing Fumudoh v. Aboro [1991] 9 NWLR (Pt. 314) 210 at 231 – 232. And by Holec Projects (Nig.) Ltd v. Defeson Int’l Ltd [1999] 6 NWLR (Pt. 607) 490 at 498 – 499: It is trite that a cause of action is reasonable once the statement of claim or the particulars discloses some cause of action or some question fit to be decided by a Judge sitting alone or with a jury notwithstanding that the case is weak or not likely to succeed. The claimants went on that it is a well settled principle of our adjudicative law that in determining whether there exists a reasonable cause of action, the Court’s search for such cause of action is restricted to the writ of summons and the statement of claim, referring to Kusada v. S.NA [1968] 1 All NWLR 377 (wrong citation), Bolaji v. Rev. Bamgbose [1986] 4 NWLR (Pt. 37) 632, Hispanic Construction (Nigeria) Limited v. Odogiyan I [1986] 4 NWLR (Pt. 34) 248 and Adesokan & ors v. Prince Adegorolu & ors [1991] 3 NWLR (Pt. 179) 293. The second issue which the 4th and 6th defendants canvassed is the separation package agreement executed between Chevron Oil Nigeria Plc, the in-house representatives of PENGASSAN and NUPENG on behalf of the employees of Chevron including the claimants. The applicants contend that the said document is a collective agreement by a trade union on behalf of its members, while the management implementation guidelines sought to set out the further terms upon which the collective agreement will be implemented pursuant to the separation package agreement. The applicants then placed reliance on authorities which describe the collective agreement as at best “a gentleman’s agreement” devoid of enforcement by individual employees etc. To the claimants, the position taken by the applicants is outdated and devoid of merit given that the scope of the jurisdiction of this Court before which this matter lies is defined principally by the National Industrial Court (NIC) Act No. 1 of 2006 and the 1999 Constitution, as amended by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act No. 3 of 2010. That section 7(1)(c) of the NIC Act is of immediate relevance for the determination of the applicants’ allegations, where it is provided that – The Court shall have and exercise exclusive jurisdiction in civil causes and matters¬(c) relating to the determination of any question as to the interpretation of: (i) Collective agreement (ii) … (iii) The terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement. By virtue of section 254C(1)(j) of the 1999 Constitution (as amended), it is provided that – ...the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in Civil causes and matters relating to the determination of any question as to the interpretation and application of: (i) Any collective agreement; (iv) Trade union dispute or employment dispute as may be recorded in any memorandum of settlement. The claimants then stated that they presented three principal documents in support of their claim before this Court, viz: the Separation Package Agreement dated the 7th day of October, 2008; the Sale and Purchase Agreement dated the 16th day of September 2008, with its relevant amendments, and the Collective Agreement made on the 1st day of April 2009 as well as other correspondence, notices, staff hand book etc. The claimants then submitted that the Court is empowered by section 7(1)(c)(iii) of the NIC Act as well as section 254C(1)(j)(v) of the 1999 Constitution (as amended) to interpret the terms of the Separation Package Agreement dated October 7, 2008 and the Sale and Purchase Agreement dated the 16th day of September, 2008 to the extent of the incorporation therein of the Separation Package Agreement, which is in itself the memorandum of settlement of a dispute between the claimants and the Management of Chevron Oil Nigeria Plc. Furthermore, that by virtue of section 254C(1)(k) of the Constitution, this Court has powers to exercise jurisdiction, to the exclusion of any other Court in civil causes and matters relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation as well as matters incidental thereto. That the present suit is connected with a dispute arising from non¬payment of the benefits and other allowances of the claimants/respondents’ members of staff of Chevron Oil Nigeria Plc and the parties herein. On the issue of the 6th defendant i.e. Chevron Corporation, the claimants submitted that they have shown in the preamble, the definition clause of the sale and purchase agreement, which referred to the 6th defendant as THE PARENT COMPANY OF CHEVRON WORLDWIDE including the 4th and 5th applicants herein and concerning the claimants as set out in the statement of facts herein. The claimants then relied on the observations made by the lead judgment of Hon. Justice Theresa Nkolika Orji-Abadua, JCA in Pfizer Incorporated v. Mohammed [2013] 16 NWLR 155 at 161 thereof where the Hon. Justice made observations about the status of a global conglomerate “Pfizer” as follows – Pfizer is a going concern in Nigeria, and, there is only one Pfizer Inc.’s subsidiary in Nigeria. The identity of Pfizer is well known to the 1st appellant, the PARENT COMPANY OF ALL THE PFIZER SUBSIDIARIES IN THE WORLD. As the respondent rightly stated there is only one ‘Pfizer’ in the whole world. The claimants recommended this observation to the Court, urging it to hold that the 6th defendant is shying away from its responsibilities or trying to renege on its obligations to the claimants by the arguments put forth by the applicants herein. The claimants then urged the Court to note that the sale and purchase agreement was intended at all times to be “Private and confidential” as boldly written on its covering page. Also at page 44 thereof titled, excluded intellectual property at clauses I(d) and (e) thereof reference is made to Chevron “4 & 1” vision for business success and all its related and necessary process, including the Chevron Way (underlining ours) all trademarks. At schedule 4 subtitled closing obligations particularly at I(e) ....a copy of a resolution of the shareholders of Chevron Nigeria to change the corporate name of Chevron Nigeria, in each case, to a name which does not incorporate the word “Chevron”, “Texaco” or “Caltex” or any words resembling the same. Finally, in arguing the applications, the 4th and 6th defendants/applicants also placed reliance on the question of privity of contract arguing that since there was no privity of contract between the claimants/respondents and the 4th and 6th defendants/applicants, they ought not to have been made parties to this suit. In response, the claimants submitted that the law with respect to privy of contract has developed over the years creating exceptions to the rule as in the special circumstances of this suit, referring to Nissan (Nig.) Ltd v. Yoganathan [2010] 21 NLLR (Pt. 59) 354 at 370 which facts are almost on all fours with the present suit. That flowing from the above the Court per Rhodes Vivour, JCA (as then was) held as follows – It is well settled that as a general rule, a contract cannot be enforced by or against a person who is not a party to it...This is based on the doctrine of privity of contract which is associated with the rule that consideration must move from the promise. Over the years exceptions to the doctrine of privity has developed because where it is strictly applied there may be considerable injustice and inconvenience notable exceptions are (a) Covenants in agreements, especially those concerning land (b) Agency (c) Assignment. The claimants/respondents continued that given the relationship between the 4th defendant/respondent and the 5th and the 6th and the covenants in the Sales and Purchase Agreement as pleaded in the statement of facts, the 4th and 6th defendants/applicants cannot deny being aware of the existence of the Separation Package Agreement, which set out the interests of the claimants under the sub-head EMPLOYEES particularly at paragraphs 16.3(a) to (d) as follows – (a) Not to give notice to terminate the employment of, or otherwise dismiss or discharge, any of the Employees (other than for lawful cause) on or before the third anniversary of the closing date; (b) Until at least the third anniversary of the Closing Date, provide all of the Employees with at least the same pay, the same employment terms and conditions and a total compensation and benefits package that is no less favorable than the terms and conditions and the total compensation and benefits package provided to the Employees as of the date of this Agreement; (c) procure that the length of service of any Employee recognized by Chevron Nigeria immediately prior to the Closing Date is taken into account for all purposes for any benefits provided by purchaser or Chevron Nigeria to the Employees; and (d) if required by Seller, give undertakings to the effect of clause 16.3(a) to (c) directly to the Employees and/or their representatives. It is, therefore, the submission of the claimants that the Court should reject the doctrine of privity of contract to dismiss as defined by the 4th and 6th defendants/applicants and uphold that the claimants/respondents have clearly disclosed a reasonable cause of action against the applicants in this suit. It is the claimants/respondents’ contention that the role of the applicants in the flagrant violation of the SPA and the CBA between the claimants/respondents and the applicants and the refusal, neglect or failure of the applicants to respect the rights of the claimant/respondents’ members to be paid their full terminal benefits, is an unfair labour practice. The claimants/respondents then submitted that they are claiming against the defendants given their roles in the flagrant violation of the acknowledged rights of the claimants/respondents’ members as pleaded in its statement of facts; and this is strictly within the law as was held by the Court in Nissan (Nig.) Ltd v. Yoganathan (supra) as follow:- It is an actionable wrong to flagrantly facilitate the breach of contractual obligation to the detriment of the Appellant simply because the 2nd Respondent was not privy to it, it is pertinent that the alleged deliberate violation of contractual term by the two respondents occasioned an actionable wrong, if proved or undenied, and the liability for the consequential damages suffered thereby is, of course, joint. The basis for liability lies in the imputation made in the Statement of Claim about the knowledge of the Appellant's contractual right and the flagrant violation thereof by both respondents. It is the further submission of the claimants/respondents that should the Court considers the applications and rule in favour of the applicants, there would be nothing left in the substantive suit to decide. In other words, a decision in favour of the applicants striking out their names from the suit would leave only the claimants and 4th and 6th defendants/respondents in the fray, making the entire claims herein mainly declaratory without any enforcement against the guilty parties. It is the claimants/respondents’ contention that for this Court to effectively and effectually decide the rights and obligations of the parties to this suit, the Court must proceed to consider the merits of the case, which cannot be made at the stage of a preliminary objection. That it is trite law that courts cannot go into the merits of a case in an application that ought to be restricted to only a preliminary objection, referring to Olaleye v. Afribank Nig. Plc [2012] 27 NLLR (Pt. 77) 277 at 300 where the Court held that – In considering the processes filed and the written submissions of the parties, I must point out that the arguments of the parties essentially dovetailed into the merit of the case. The matter at hand is a simple case of the defendants objecting to this Court assuming jurisdiction over the claims of the claimant. It is trite learning that it is the originating processes that determine whether a court has jurisdiction or not. For parties to therefore, proceed with arguments that touch on the merit of the case is jumping the gun. This Court cannot go into the merits of the case in a matter that ought to be restricted to only a preliminary objection. In conclusion, the claimants urged the Court to dismiss the 4th and 6th defendants’ applications with substantial costs in favour of the claimants and allow the matter proceed to hearing. 4TH AND 6TH DEFENDANTS’ REPLY ON POINTS OF LAW Here, the 4th and 5th defendants first reiterated that all through their written address, the claimants did not disclose any wrongdoing against them to warrant their being sued as defendants. That all allegations of wrongdoing are made against the 1st defendant even when the totality of the complaint and statement of facts is taken. That having failed to challenge the submission of the applicants that no allegation of wrongdoing have been made against them, the claimants must be taken to have conceded to those submissions. Next, the 4th and 6th defendants submitted that the fact that the Sale and Purchase Agreement recognizes the interest of employees of the 1st defendant does not in any way make the claimants privy to the agreement. The 4th and 6th defendants proceeded to submit that the claimants misunderstood their case regarding the enforceability of collective agreements, which case is that so long as the claimants did not show that the collective agreement was incorporated into their contracts of employment, they cannot rely on same in this case, referring to UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453 at 471 – 472, ACB v. Nwodika [1996] 4 NWLR (Pt. 443) 470 at 487 and Anaja v. UBA Plc [2013] 30 NILR (Pt. 87) 338 at 361. That the question is not whether this Court can interpret collective (which it can) but whether the claimants can enforce it (which to the applicants they cannot). To the applicants, the claimants appear to argue that the 6th defendant can be made liable for the obligations of its related subsidiaries because the Sale and Purchase Agreement refers to the 6th defendant as the “ultimate parent company” of Chevron. That this argument does not hold water if the authority of Union Beverages Ltd v. Pepsicola Int. Ltd [1994] 3 NWLR (Pt. 330) 1 at 16 is anything to go by. As such the fact that the Sale and Purchase Agreement acknowledges the relationship between the 6th defendant and its subsidiaries does not of itself make the 6th defendant liable for the undertakings of its subsidiaries; and the fact that the 6th defendant stands in such proximity the 4th defendant in relation to the Sale and Purchase Agreement is not a basis for inferring that it assumed obligations under a contract to which it is not a party, citing Thomas Makwe v. Nwukor [2001] 14 NWLR (Pt. 733) 356 at 372 where it was held that the fact that a person who is stranger to the consideration of a contract stands in such a near position to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract. The applicants went on that the decision in Pfizer Incorporated v. Mohammed ]2013] 16 NWLR (Pt. 1379) 155 at 178 cited by the claimants was cited out of context. That the case was about whether or not the plaintiff can be allowed to correct the name of the Nigerian subsidiary as sued. That it had nothing to do with the question whether a parent company should be held liable for the actions of its subsidiary; and so it is not authority for making a parent company privy to contracts entered into by its subsidiaries. As to the claimants’ reference to Nissan v. Yoganathan [2009] All FWLR (Pt. 494) 1585, the applicants submitted that while the case therein was for inducing a breach of contract (which is a tort) the case of the claimants in the instant case does not include any claims or reliefs for inducing a breach of contract; and this remains so despite the fact that the claimants in their written address accused the applicants of facilitating breach of contractual obligation. That this submission of the claimants cannot form part of the pleadings, citing S.S. GMBH v. TD. Ind. Ltd [2010] 11 NWLR (Pt. 1206) 589. The applicants continued that the claimants had contended that this Court has jurisdiction to interpret the Sale and Purchase Agreement but that the claimants did not demonstrate in what sense they contend that the Separation Package Agreement is incorporated into the Sale and Purchase Agreement. In any event, that the fact that there may be provisions of the Sale and Purchase Agreement which benefit the claimants does not in any way make them privy to the agreement as to be capable of enforcing it, citing B.M. Ltd v. Woermann [2009] 13 NWLR (Pt. 1157) 149 at 180. Regarding the claimant’s reliance on section 254C(1)(k) of the 1999 Constitution, as amended, the applicants submitted that the claimants are not employees of the applicants, as such no issue as to the payment of their entitlements can arise as between the claimants and the applicants. The applicants then concluded by urging the Court to discountenance the claimants’ arguments and grant the reliefs the applicants seek. 5TH DEFENDANT’S SUBMISSIONS To the 5th defendant, the instant suit discloses no cause of action against it. That the claimants’ union entered into a Separation Package Agreement dated 7th October 2008 with the 1st defendant then known as Chevron Oil Company Plc. That the claimants allege that their interests under the Separation Package Agreement were further protected by the terms of the Management/Separation Package Implementation Guidelines dated 27th October 2008 signed by the Managing Director of the 1st defendant. The claimants also allege that the Separation Package Agreement was only partially implemented; and that the 4th defendant sold its shares in the 1st defendant to the 3rd defendant. The 6th defendant is the ultimate parent company of the 4th and 5th defendants. The 5th defendant is a Nigerian company and is not a shareholder in the 1st defendant nor did it participate in the negotiation or execution of the Separation Package Agreement between the claimants and the 1st defendant. That there is no specific allegation or claim against the 5th defendant/applicant. The 5th defendant then framed one issue for the determination of the court, to wit: whether in the circumstances of the case there exists any cause of action against the 5th defendant such as would entitle the claimants to retain the 5th defendant/applicant as a party to the suit and clothe this Court with jurisdiction in respect of the 5th defendant/applicant. It is the 5th defendant’s submission that there is no cause of action against it because the claimants in their originating processes have not laid any specific allegation or claim against the 5th defendant/applicant, citing Yare v. NSW & IC [2013] 12 NWLR (Pt. 1357) 173 at 176, which defined a cause of action as – …the entire set of circumstances giving rise to an enforceable claim. It is in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives to the plaintiff his cause of complaint and the consequent damage. The 5th defendant continued that the jurisdiction of the Court is fundamental to the validity of any judgment, referring to Goldmark (Nigeria) Limited v. Ibafon Co. Limited [2012] 10 NWLR (Pt. 1308) 291. That this jurisdiction is prescribed by the Constitution of the Federal Republic of Nigeria and relevant statutes and is determined by the claimants’ claim as endorsed on the writ of summons and the statement of claim. In Arowolo v. Akaiyejo [2012] 4 NWLR (Pt. 1290) 286 at 291 the Court of Appeal held that: A cause of action and standing to sue are linked to the issue of jurisdiction of a court. If the plaintiff does not have a cause of action or the standing to sue, that is locus standi, to institute an action, the court cannot properly assume jurisdiction to entertain the matter... That it is clear from the statement of facts that there is no cause of action against the 5th defendant/applicant. It is the 5th defendant’s submission that even if all the averments in the statement of facts are true, the claimants would not be entitled to judgment against 5th defendant/applicant. Accordingly, that this Court has no jurisdiction over it in respect of the present claim, citing Ohaji v. Unamka [2011] 4 NWLR (Pt. 1236) 148 at 154 where it was held that once it is discovered that a plaintiff’s claim does not disclose any cause of action, then the court lacks the necessary vires to entertain the claim. The 5th defendant went on that a careful reading of the statement of facts reveals that the claim is against the 1st defendant. The Separation Package Agreement and the Management/Separation Package Implementation Guidelines were entered into between the claimants and the 1st defendant. That there is no contract between the claimants and the 5th defendant/applicant; as such leaving the 5th defendant/applicant as a party to the suit would offend the principle of privity of contract. A person who is not a party to a contract cannot be bound by it. He cannot sue or be sued under it, referring to C. N. Ekwuogor Investment (Nigeria) Limited v. Asco Investment Limited [2011] 13 NWLR (Pt. 1265) 565 at 571, Osoh v. Unity Bank Plc [2013] 9 NWLR (Pt. 1358) 1 at 9, Mohammed v. Mohammed [2012] 11 NWLR (Pt. 1310) 1 at 17, Ironbar v. Federal Mortgage Finance [2009] 15 NWLR (Pt. 1165) 506 at 515, CAP Plc v. Vital Investments Limited [2006] 6 NWLR (Pt. 976) 220 at 262 and Cross River State Water Board v. Nugen Consulting Engineering Limited & ors [2006] 13 NWLR (Pt. 998) 589 at 613. To the 5th defendant, the Separation Package Agreement between the claimants and the 1st defendant cannot give the claimants rights against the 5th defendant/applicant, further citing Nwuba v. Ogwuchi [2008] 2 NWLR (Pt. 1072) 471 at 481, which held that – …a contract only affects parties to it and cannot be enforced by or against person who is not a party even if the contract is for his benefit and purports to give him the right to sue and make him liable under it. That the Court of Appeal went on to hold in that case that the trial court was wrong to have given judgment against a defendant who had no connection with the plaintiff. To the 5th defendant, the inexorable conclusion is that the joinder of the 5th defendant/applicant is not necessary, citing L.S.B.P.C. v. Purification Tech. (Nigeria) Limited [2013] 7 NWLR (Pt. 1352) 82 at 91, where the Supreme Court in defining a necessary party held that – A necessary party is someone whose presence is essential for the effectual and complete determination of the issues before the court. He is a party, in absence of whom claim cannot be effectually and completely determined. Also referred is Green v. Green [1987] 3 NWLR (Pt. 61) 480, where the Supreme Court held that “Necessary parties are those who are not only interested in the subject matter of the proceedings but also who, in their absence, the proceedings could not be fairly dealt with”. That this principle was also followed in Ojo v. Ogbe [2007] 9 NWLR (Pt. 1040) 542 where the Court of Appeal, after considering the statement of claim, found that the 1st respondent was not a necessary party to the suit and struck him out. That recent decisions of Nigerian trial courts have also recognized the need to save an unnecessary party from incurring unnecessary costs in defending litigation that does not concern it. That in John Fadaka & anor v. Emmanuel Ehiemua & 3 ors unreported Suit No LD/1415/2010 the Lagos High Court struck out the name of a defendant from the suit because it found that no cause of action existed against that party. In conclusion, the 5th defendant submitted that for the reasons adduced, its name ought to be struck out this suit. CLAIMANTS’ REPLY TO 5TH DEFENDANT’S SUBMISSIONS To the claimants, the crux of their case is that the 5th defendant as an affiliate of the 6th defendant controls the activities of the 6th defendant in Nigeria. The 5th defendant took part in the divestment of the 4th defendant’s majority shareholding in Chevron Oil Nigeria Plc to MRS HOLDINGS through Corlay Global S. A. i.e. the 3rd defendant herein. The 5th defendant also mandated its staff Mr. Agwunobi to negotiate the Separation Package Agreement on behalf of Chevron Oil Nigeria Plc. It is, therefore, the claimants’ position that the 5th defendant is a necessary party in this suit. Furthermore, the claimants stated that the 5th defendant has joined issues with the claimants by filing a statement of defence, witness statement on oath as well as documents to be relied upon. That it has voluntarily submitted itself to the jurisdiction of this Court and, therefore, cannot ask the Court to strike out its name at this stage. In arguing against the 5th defendant’s application, the claimants adopted and relied on their written address in opposition to the 4th and 6th defendants’ preliminary objection. The claimants then framed two issues for the determination of the Court, namely – i) Whether the 5th defendant being an affiliate of the 6th defendant and having taken part in the divestment of the majority shares of Chevron Oil Nigeria Plc as well as negotiated the Separation Package Agreement is a necessary party in this suit. ii) Whether the 5th defendant can bring the application as couched at this stage having joined issues with the claimants by filing a statement of defence. Regarding issue i), the claimants submitted that a cause of action is a factual situation which if substantiated entitles the plaintiff to a remedy against the defendant. It is the operative fact or facts which give rise to the right of action which itself is a remedial right, referring to Labode v. Otubu & ors [2001] 4 SCM 53 Ratio 5. That in other to determine whether a suit discloses a reasonable cause of action, the Court will look at the totality of the averments set out in the statement of claim. The Court cannot examine pockets of averments in the statement of claim in isolation but in unison and in totality, referring to Funmudoh v. Aboro [1991] 9 NWLR (Pt. 314) 210 at 231 – 232. To the claimants, the crux of the matter before this Court is nonpayment of their entitlements. That the 5th defendant has alleged that it did not take part in the divestment of the 4th defendant shares in Chevron Oil Nigeria Plc nor took part in the negotiation of the Separation Package Agreement. That the averments in the counter-affidavit as well as the exhibits attached therein shows that the 5th defendant being an affiliate of the 6th defendant took part in the divestment of the majority shareholding of Chevron Oil Nigeria Plc as well as negotiated the Separation Package Agreement. That the 5th defendant also controls the 6th defendant’s activities in Nigeria including Chevron Oil Nigeria Plc (as it then was). Mr. Agwunobi, a staff of the 5th defendant, led the team that negotiated the Separation Package Agreement and its only affiliate or subsidiary of the 6th defendant that is within the jurisdiction of this Court. That unless they remain as parties to this suit, it would be difficult for the claimants to enforce the judgment in the event that they succeed; and that will amount to rendering the efforts of both the claimants and the Court useless. The claimants went on that the preamble in the definition clause of the Sale and Purchase Agreement which is one of the documents they frontloaded refers to the 6th defendant as the parent company of Chevron worldwide including the 5th defendant herein. That is why the 5th defendant acted on their behalf in the entire transaction. That also justifies the reason for suing them jointly, referring to Nissan (M.G) Ltd v. Yoganathan [2010] 21 NLLR (Pt. 59) 354 at 370. That assuming without conceding as argued by the 5th defendant that the statement of claim discloses no cause of action, the Court will still not strike out the matter if it is convinced that an amendment will cure the defect, citing Thomas v. Olufosoye [1986] 1 NWLR (Pt. 18) 669 at 682, where the Supreme Court per Obaseki, JSC held that as follows – Where the Statement of Claim discloses no cause of action, if the court is satisfied that no amendment, however ingenious will cure the defect the Statement of Claimant will be struck out and the action dismissed. Prior to hearing a suit, a court ought not to dismiss or strike out a pleading or the entire action because of an accidental curable defect in the pleadings in order to expedite the hearing of the action the court should give the defaulting party an opportunity to rectify the defect as it may deem just if by an amendment, the Statement of Claim will disclose a cause of action, the court will grant an amendment as sought but the suit will be dismissed if an amendment however ingenious cannot make the Statement of Claim disclose a cause of action. The claimants then urged the Court to resolve issue i) in favour of the claimants. On issue ii) i.e. whether the 5th defendant can bring the application as couched at this stage having joined issues with the claimants by filing a statement of defence, the claimants contended that the 5th defendant has joined issues with the claimants in this matter by filing a statement of defence as well as the frontloaded documents in compliance with the Rules of this Court. That the purport of this is that it has submitted itself voluntarily to the jurisdiction of the Court to determine the matter on the merits. It is, therefore, estopped from asking the Court to strike out its name at this point. Furthermore, that the case as placed before the Court is complex and the Court cannot do justice to same without setting the matter down and evidence taken in other to unravel the mystery behind the acts of the defendants. That the whole essence of this application is to destroy the matters placed before the Court for adjudication thereby discharging themselves from fulfilling their obligations to the claimants. That this Court is created to ensure that employees are not treated anyhow by their employers. The Court has no option but to see that justice is done to the case and the only way that can be achieved is to refuse the application and set the matter down for trial. That in National Universities Commission v. Oluwo [2001] 3 NWLR (Pt. 699) 90 at 105, Adamu, JCA stated that “Courts are prevented from the predetermination of the substantive suit at all interlocutory stage”. The claimants then urged the Court to use its inherent powers to ensure that substantial justice is done in the matter by setting same down for trial on the merits. That in the case of Arubo v. Aiyeleru [1993] 3 NWLR (Pt. 280) 126 at 142 Nnaemeka-Agu, JSC stated thus – Inherent jurisdiction or power is a necessary adjunct of the powers conferred by the Rules and is invoked by a court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused. One most important head of such inherent powers is abuse of process, which simply means that the process of the courts must be used bona fide and properly and must not be abused. Once the court is satisfied that any proceeding before it is an abuse of process it has the power, indeed the duty to dismiss it. The claimants accordingly urged the Court to dismiss the application as same is an abuse of the court process and set the matter down for trial so as to allow parties unfettered rights to canvass their case. In conclusion, the claimants submitted that the 5th defendant is a necessary party and so the Court should dismiss the application and set the matter down for trial. 5th DEFENDANT’S REPLY ON POINTS OF LAW In response to issue i), the 5th defendant contended that it is trite law that ‘he who asserts must prove’, referring to Dada v. Dosunmu [2006] 18 NWLR (Pt. 1010) 134 at 171. In this matter before this Court, the claimants’ have done absolutely nothing to prove that the 5th defendant is privy to the Separation Package Agreement and the Management/Separation Package Implementation Guidelines or show a contractual nexus between themselves and the 5th defendant as it relates to their claim in this suit. The 5th defendant went on that in an attempt to prove that the 5th defendant is privy to the Separation Package Agreement and the Management/Separation Package Implementation Guidelines between the claimants and the 4th defendant, the claimants filed Exhibits M.E 1 to M.E 6 in support of the averments in their counter-affidavit. However, that a careful look at those exhibits before this Court also reveals that none of those documents state that the 5th defendant is a party to the said Separation Package Agreement and the Management/Separation Package Implementation Guidelines between the claimants and the 4th defendant. Despite the averments that Messrs. Agwunobi and Kufeji were staff of the 5th defendant appointed to negotiate the Separation Package Agreement and the Management/Separation Package Implementation Guidelines between the claimants and the 4th defendant, the claimants have done nothing to prove these averments. Rather, Exhibit M.E 1 which the claimants have put surreptitiously before this Court as proof of the appointment of Mr. Agwunobi to negotiate the Separation Package Agreement by the 5th defendant is an email sent by Mr. Jules C. Harvey to welcome Mr. Agwunobi as a staff of ChevronTexaco West Africa, which the claimants agree became Chevron Oil Nigeria Plc, referring to paragraph 3 (iv) of the claimants’ counter-affidavit. Also on issue i), that the claimants cited the dictum of Ejiwunmi JSC in the Supreme Court case of Bank of Baroda v. Iyabalani [2002] 13 NWLR (Pt. 785) 551 in an attempt to convince this Court not to dismiss this suit and for an opportunity to rectify an ‘accidental curable defect’ in their pleadings and not strike out the 5th defendant as a party in this matter. In response to this, the 5th defendant submitted that this argument will not avail the claimants because this Court has given both parties over one year to file their pleadings and the claimants in this time failed to bring any claim or expressly make known their cause of action against the 5th defendant in this matter (despite the amendment of their statement of facts before this Court). Therefore, the the claimants have been given ample time but they have severally failed to prima facie establish the nexus between themselves and the 5th defendant as it concerns their claims in this matter. The 5th defendant then reiterated that the claimants have no contractual relationship with the 5th defendant or a cause of action against the 5th defendant in so far as the claims and remedies sought from this Court are as contained in their statement of facts. That it is the alleged breach of the Separation Package Agreement that forms the basis and fulcrum of the claimants’ claims against the defendants as enumerated in their statement of facts. The 5th defendant continued that the claimants made copious averments in their counter-affidavit dated 20th August 2014 especially at paragraph 3 (i) – (xvi)) that the 5th defendant ‘supervised’ and ‘negotiated’ the Separation Package Agreement between the claimants and the 4th defendant. That a careful examination at those statements by this Court will reveal that those statements even if they were true will not make the 5th defendant a party to the Separation Package Agreement. That the absence of this contractual relationship and a cause of action as it concerns the claimants’ claims consequently mean that there is no cause of action against the 5th defendant. The 5th defendant is not liable to the claimants. Accordingly, in the event that this Court finds in the claimants’ favour, the 5th defendant could not be made liable. This makes the joinder of the 5th defendant in this suit unnecessary under Nigerian law and robs this Court of its jurisdiction over the 5th defendant in respect of the present claim, referring to Yare v. N.S.W. & I. C. [2013] 12 NWLR (Pt. 1357) 173 at 176 and Ohaji v. Unamka [2011] 4 NWLR (Pt. 1236) 148 at 154. Regarding issue ii), the 5th defendant submitted that its filing of its memorandum of appearance and statement of defence was done in compliance with Orders 8 and 9 of the National Industrial Court Rules 2007. That the aforesaid Orders provide a stipulated time and appropriate manner in which a defendant in a suit before this Court shall come before Court. The filing of a statement of defence by a defendant in a suit does not in any way rob that defendant of the right to bring a preliminary objection before the Court, especially one that brings the jurisdiction of the Court to entertain the matter against the defendant into issue. The 5th defendant went on that it is trite law that an issue of the jurisdiction of the Court to entertain a matter before it can be raised at any time or stage of the proceedings, referring to Adeleke v. O.S.H.A [2006] 16 NWLR (Pt.1006) 608 at 706 and Gbagbarigha v. Toruemi [2013] 6 NWLR (pt. 1350) 289 at 306. That in applying the decisions in these cases, the 5th defendant’s motion for striking out its name as a defendant in this suit on grounds challenging the jurisdiction of the Court as a result of the absence of a claim against it in this matter has been raised correctly at this stage of the proceedings despite the 5th defendant’s filing of its statement of defence. In determining jurisdiction of the Court, the 5th defendant cited Inakoju v. Adeleke [2007] 4 NWLR (pt. 1025) 427 at 589 and submitted that the Court should not be influenced by sympathy for the case of one of the parties but must base its decision on the law, particularly in light of the enabling law; after all, jurisdiction is a matter of hard law. That the duty of the Court when applying the principle of substantial justice, going by Dada v. Dosunmu (supra) at 166, is as follows – The role of the court is to apply the principles of substantial justice according to law. The principles cannot be applied outside the law or in contradiction of the law. A court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party. Justice should be evenly spread between the parties. Finally, the 5th defendant submitted that its application is valid and has merits when put under the scrutiny of Nigerian Law. The 5th defendant accordingly urged the Court to grant its application with costs. COURT’S DECISION I heard learned counsel and considered all the processes filed in this suit. In considering the merit of the issues at hand, I need to state that the processes that must be considered are only the originating summons, nothing else. This is because it is trite law that when an objection is raised that the statement of claim does not disclose a reasonable cause of action, it is the statement of claim that has to be examined to ascertain whether or not there is reasonable cause of action. See Cookey v. Fombo [2005] 22 NSCQR 411, Dr Irene Thomas & 5 ors v. The Most Rev. Olufosoye [1986] 1 NWLR (Pt. 18) 669 and Ogbimi v. Ololo [1993] 7 NWLR (Pt. 304) 128. So when affidavits and counter-affidavits were filed by the parties, they must of necessity be discountenanced. For instance, averments of the claimants in their counter-affidavit as well as the exhibits attached, which show that the 5th defendant being an affiliate of the 6th defendant took part in the divestment of the majority shareholding of Chevron Oil Nigeria Plc as well as negotiated the Separation Package Agreement, and that the 5th defendant also controls the 6th defendant’s activities in Nigeria including Chevron Oil Nigeria Plc (as it then was), and that Mr. Agwunobi, a staff of the 5th defendant, led the team that negotiated the Separation Package Agreement and its only affiliate or subsidiary of the 6th defendant that is within the jurisdiction of this Court, all go to nothing as they cannot be factored in the consideration of the applications of the 4th, 5th and 6th defendants. In any event, a closer look at the affidavit of the 4th and 6th defendants and the reaction counter-affidavit of the claimants all show that they were more of written addresses than affidavits. As such they both offended section 115(2) of the Evidence Act 2011 and so cannot be used i.e. assuming they are even needful for purposes of this ruling. This said, the issue before the Court is whether the claimants have disclosed a reasonable cause of action against the 4th, 5th and 6th defendants. While these defendants argue that the claimants have not disclosed any case against them, the claimants think otherwise. The 4th and 6th defendants, for instance, had argued that the claimants must establish that they have the legal capacity or locus standi to institute this action. To this, the claimants responded that the 4th and 6th defendants at all relevant times were the employers of the claimants, and the relevant documents that form the fulcrum of the issues set out by the claimants for determination before this Court were executed upon the instructions which flow at the instance of the 6th defendant i.e. Chevron Corporation issuing directives to its subsidiaries i.e. the 4th and 5th defendants. That the totality of the averments set out in the statement of claim clearly set out issues that ought to be looked into on the merit. In arguing that the totality of the pleadings set out in the statement of facts clearly bring out the issues that ought to be looked into on merit, the claimants seem to have misconceived the concept of locus standi. In Mr. Cyriacus Njoku v. Dr Goodluck Jonathan unreported Suit No. CA/A/574/2013 the judgment of which was delivered on 3rd March 2015, the Court of Appeal per His Lordship Abubakar Datti Yahaya, JCA at pages 15 – 16 of the lead judgment first held that locus standi denotes legal capacity to institute legal proceedings in a court of law; and then explained its focus in the following words – The concept focuses not on the merit of the case but on the merit of the person seeking to approach the court. The essence of the concept is to protect the court from being used as a playground by professional litigants, busy bodies, meddlesome interlopers and cranks who have no real stake or interest in the subject matter of the litigation they seek to pursue. It is so fundamental that where a plaintiff lacks locus standi, the court cannot properly assume jurisdiction. In the instant case, the claimants seem to be focusing, not on their merit but on the merit of the case by asking the court to look at the totality of the pleadings so as to see clearly the issues that ought to be looked into on merit. The 4th and 6th defendants’ argument is not about the merit of the case but about the merit of the claimants coming before this Court with the instant case. All of this is of course without prejudice to the overriding rule that it is the statement of facts that must be looked at to discern if sufficient interest has been disclosed on the part of the claimant, as Mr. Cyriacus Njoku v. Dr Goodluck Jonathan (supra) itself held at page 22 of the lead judgment. It is the argument of the 4th and 6th defendants that given the privity of contract principle, they are not privy to the agreements frontloaded by the claimants in this suit and as such cannot be proceeded against in terms of this suit. The claimants in response acknowledged the privity rule but submitted that the rule is not absolute as it admits of exceptions. The claimants would, however, not state to the Court how their case falls under any of the recognized exceptions to the rule. The claimants went on that given the relationship between the 4th defendant/respondent and the 5th and the 6th and the covenants in the Sales and Purchase Agreement as pleaded in the statement of facts, the 4th and 6th defendants/applicants cannot deny being aware of the existence of the Separation Package Agreement, which set out the interests of the claimants. On this score, the claimants urged the Court to discountenance the claim for the privity rule by the applicants. The argument of the claimants here is worrisome. When has being aware of the existence of a contract translated to being bound by it? Alternatively put, when has knowledge of the existence of a contract translated to one of the exceptions to the privity rule? The claimants did not tell the Court or substantiate this novel proposition of law. The claimants also argued that the role of the applicants in the flagrant violation of “the SPA and the CBA” (the claimants did not indicate what ‘SPA’ and ‘CBA’ stand for) between the claimants and the applicants and the refusal, neglect or failure of the applicants to respect the rights of the claimant/respondents’ members to be paid their full terminal benefits, is an unfair labour practice and an actionable wrong, citing Nissan (Nig.) Ltd v. Yoganathan (supra). Two issues arise here (issues that the 4th and 6th defendants stressed in their reply on points of law): first, the claimants did not indicate that the substantive issue in the instant suit is one for inducement of breach of contract; and secondly, the claimants do not seem to understand that the actionable wrong referred to in the quotation they made in Nissan (Nig.) Ltd v. Yoganathan (supra) is an actionable wrong in tort, that for inducing breach of contract. The issue presently before the Court is whether the applicants are sufficiently privy to the contracts in issue as to be bound by them. The claimants did not sue the defendants for inducing breach of contract, and so that issue cannot just prop up now and at this stage of the case. The claimants had argued that should the Court consider the applications and rule in favour of the applicants there would be nothing left in the substantive suit to decide. In other words, that a decision in favour of the applicants striking out their names from the suit would make the entire claims herein mainly declaratory without any enforcement against the guilty parties. In fact in regards to the 5th defendant, it was the argument of the claimants that unless the applicants remain as parties to this suit, it would be difficult for the claimants to enforce the judgment in the event that they succeed, and that this will amount to rendering the efforts of both the claimants and the Court useless. What ‘efforts of the Court’ are the claimants alluding to here? The Court is being called upon to rule on preliminary objections as to the competence of this suit and the jurisdiction of the Court to entertain it. How then can the claimants be alluding to ‘efforts of the Court’ as if the merit of the case has been considered and decided in their favour? This recourse to emotionalism by the claimants in the name of submissions is uncalled for. If in truth the applicants cannot be proceeded against, are the claimants saying that this Court should close its eyes to that fact simply because they now have an empty shell for a case? Such a play on emotions instead of proper submissions on the part of the claimants cannot simply stand in this Court. Furthermore, the claimants stated that the 5th defendant has joined issues with the claimants by filing a statement of defence, witness statement on oath as well as documents to be relied upon. That the purport of this is that it has submitted itself voluntarily to the jurisdiction of the Court to determine the matter on the merits. It is, therefore, estopped from asking the Court to strike out its name at this stage of the suit. The claimants did not supply any authority for this proposition of law; as such I shall discountenance it as nothing other than another exhibition of emotionalism since the law is that parties cannot by connivance, acquiescence or collusion confer jurisdiction on a Court where jurisdiction is lacking (Okolo v. Union Bank of Nig. Plc [2004] All FWLR (Pt. 197) 981 and FGN v. Oshiomhole [2004] 3 NWLR (Pt. 860) 305); neither can they waive jurisdiction (Okolo v. Union Bank of Nig. Plc and Mobil Production Nig. Unltd v. Monokpo [2004] All FWLR (Pt. 195) 575). Further emotional is the plea of the claimants that the case they placed before the Court is complex and as such the Court cannot do justice to same without setting the matter down and evidence taken in other to unravel the mystery behind the acts of the defendants. If a case is incompetent, is jurisdiction thereby conferred on the Court simply because what the claimant placed before the Court is complex? I do not think so. The claimants referred to National Universities Commission v. Oluwo [2001] 3 NWLR (Pt. 699) 90 at 105, where Adamu, JCA stated that “Courts are prevented from the predetermination of the substantive suit at all interlocutory stage”. I do not know the relevance of this case to the issues at hand. What substantive issue(s) did the 4th – 6th defendants raise in their respective applications that warrant having to cite this authority and submit as the claimants did? I do not see with the claimants here. The claimants had concluded their argument by urging the Court to use its inherent powers to ensure that substantial justice is done in the matter by setting same down for trial on the merits. A Court cannot activate its inherent jurisdiction where the competence of a suit has not been established to its satisfaction. This is elementary and counsel to the claimants ought to know that. All of this said, the issue still remains whether the claimants have made a case against the applicants as 4th – 6th defendants. In the first place, I looked carefully at the originating processes of the claimants. At best, the issues the claimants have are against the 1st defendant. Nothing is said of the other defendants apart from merely describing who they are in paragraphs 2 – 8 of the statement of facts. In terms of reneging on the terms of the “Sales Purchase Agreement, Separation Package Agreement, the Management Implementation guidelines and the employees handbook inherited from their former employers i.e. Chevron Oil…”, the documents that the claimants say form the fulcrum of their claims, it is the 1st defendant who the claimants say reneged on the terms of these documents. See paragraph 15 of the statement of facts. In terms of unilateral termination of their employment, the claimants accuse the 1st defendant as per paragraph 17 of the statement of facts. By paragraph 18, it is the 1st defendant who failed to settle their gratuities; and this is so despite that the defunct Chevron Oil had made provisions for the gratuity entitlements – paragraph 19. By paragraph 20, it is the 1st defendant who refused who failed to settle the severance package as well as dialogue with the claimants. By paragraph 22, it is the 1st defendant who failed “to negotiate a severance package agreement with the Claimants representatives” and which thereby “constitute a breach of the contractual agreements signed either jointly and or severally by the Defendants”. By paragraph 23, it is the 1st defendant who refused to meet with them (the claimants) and it is to the 1st defendant that the claimants caused their solicitors to write a letter of demand. And by paragraph 24, it is the 1st defendant who “refused to meet with their representatives in order to agree on a fair and agreeable terms for settlement”. As the applicants argued, no wrongdoing whatsoever was leveled against any of the other defendants. All the claimants did was to claim jointly and severally against the defendants without showing how the 2nd – 6th defendants wronged them. All of this indicates that the claimants have not been able to show any reasonable cause of action against the applicants. Additionally, the Sale and Purchase Agreement frontloaded by the claimants is an agreement between three parties: the 4th defendant as seller, the 3rd defendant as purchaser, and the 2nd defendant with Petroci Holding as guarantors. This agreement in clauses 16.1 – 16.8 make elaborate provisions as to employees’ rights; and in clause 17.5, it acknowledges that it created third party rights, which subject to clauses 17.6 and 17.7 may be enforceable by the third parties. By clause 16.4, it is the purchaser that is responsible for any amounts becoming payable to employees under any national law, regulations or agreements applicable as a result of their being dismissed by the purchaser and/or Chevron Nigeria. The Separation Package Agreement is between the management of Chevron Oil Nigeria Plc (the company of which the 1st defendant is described to be formerly of) and the Petroleum and Natural Gas Senior Staff Association (PENGASSAN) and the National Union of Petroleum and Natural Gas Workers (NUPENG). The applicants are not privy to this agreement. The claimants on the other hand were management staff; and nowhere in the statement of facts did they plead membership of any of these trade unions as to enforce it. See Aghata N. Onuorah v. Access Bank Plc unreported Suit No. NICN/ABJ/30/2011 the judgment of which was delivered on December 15, 2014 and Samson Kehinde Akindoyin v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/308/2013 the judgment of which was delivered on April 15, 2015. The Management Severance/Separation Package Implementation Guidelines is signed by the Managing Director of Chevron Oil Nigeria Plc (the company of which the 1st defendant is described to be formerly of). It did not emanate from the applicants; as such it cannot be binding on them given the privity rule. On the whole, I agree with the submissions of the 4th – 6th defendants that no reasonable cause of action has been made against them; and they are not privy to the agreements that the claimants seek to enforce. In consequence, it is my finding and holding that the preliminary objections of the 4th – 6th defendants have merit. I uphold same and consequently strike out their names form this suit. All processes in this suit are to be corrected reflecting this order. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD