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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 14th July, 2014 SUIT NO: NICN/ABJ/154/2013 Between: Abdul Hassan Abdullahi Claimant AND News Agency of Nigeria & Another Defendants REPRESENTATION Claimant present, Defendant absent; S.F. Tarbunde (Miss) with Hammed Ogunbiyi Esq. for the defendant; No Legal representation for the claimant; RULING By a Notice of Preliminary Objection (NPO) dated the 2nd of April 2014 filed on the 9th of April 2014 the defendant counsel raised four objections to the hearing and determination of this suit on the following grounds (1) The purported 2nd defendant is a post and not a legal personality (2) The Honourable court has jurisdiction only on dispute between legal personalities and not over non juristic post. (3) This action is against the 1st defendant and the purported 2nd defendant jointly. (4) This action, as it is, is incompetently constituted. The defendant, on these grounds is asking the court to strike out the entire suit for want of jurisdiction. In the alternative, the defendant urged the court to strike out the purported 2nd defendant for not being a competent party, for not being a juristic person and for being improperly joined in this suit. The application is supported with a 6 paragraphs affidavit deposed to by Bashira Hassan, a Legal Practitioner. In compliance with the rule of this court counsel filed a written address along with the application wherein counsel to the defendant, Tarbunde S.F. cited the cases of Fawehinmi Vs. NBA No. 2 1989 2 NWLR Pt 105, 558 and Nkporawi Vs. Ejire 2009 9 NWLR Pt. 1145 131 at 177 to buttress her argument to the effect that it is only a legal person recognized expressly or impliedly by law that can sue and be sued. Counsel posited further that the 2nd defendant in this suit is neither a natural or artificial person recognized by law and as such the 2nd defendant’s name should be struck out. Counsel cited in support of her argument, position and prayers the cases of Admin /Excel Estate Abacha Vs. Eke-Spiff and 3 Others 2009 7 NWLR Pt. 1139 at 136; Agbunmagbe Bank Ltd Vs. General Manager GB Ollivant Ltd and Another 1961 All NLR 116 Maersk Line Vs. Addie Invet. Ltd 2002 and Sc (Pt 11) 157 at 197 Counsel finally urges the court to grant the defendants prayers by striking out the name of the 2nd defendant from this suit; with cost. The claimants counsel, Mr. A Attah Esq. filed a reply on point of law against the Notice of Preliminary Objection dated the 15th of May 2014 but filed on the 19th of May 2014. Mr. Attah drew the attention of the court to paragraphs 4, 5 and 6 of the objectors supporting affidavit and urged the court to hold that they are legal arguments, legal conclusion, prayers and speculations. Counsel contended that the 1st defendant is a corporate juristic person that can sue and be sued in its own name and as such it is maintainable in law even if the 2nd defendant is found not to be a juristic person. Counsel further argued that the suit is maintainable against the 1st defendant and where the 2nd defendant is seen as a non juristic person, the competency of the suit against the 1st defendant cannot be challenged as the suit is competent and where the word “defendants” appear in the complaint it should only refer to the 1st defendant. Counsel finally referred the court to section 1 (3) (e) of the News Agency of Nigeria Act LFN 2004 and submitted that the office of the 2nd defendant is a creation of statute. I have gone through the arguments and submissions of the respective counsel in this matter. The issue in contention borders on the jurisdiction of this court on the ground of legal personality of the 2nd defendant; The first question to ask is what is jurisdiction? The second is what is legal personality? It is after the determination of these preliminary question that a look at the News Agency of Nigeria Act LFN 2004 shall be done to give us a clue as to whether or not the 2nd defendant is a legal entity capable of suing and being sued; Jurisdiction in a general and complete sense is the courts power to decide a case or issue a decree or decision. It is a power of a court to decide matters presented to it and to enforce its decisions. See the Black’s Law Dictionary, nineth edition by Bryan A. Garner page 927-928. The issue of jurisdiction is a threshold issue. Once a court do not have jurisdiction, anything such a court does amount to a nullity. This is trite law. In determining the jurisdiction, it is the claim endorsed on the writ or stated in the statement of claim that will be considered, not the fact averred in the statement of claim or the affidavit evidence to be relied on by the parties. It is a misconception to refer to facts pleaded in the statement of claim or averment in affidavit as component of cause of action to be relied on in ascertaining the jurisdiction of the court. This is the position taken by the Supreme Court of Nigeria recently in the case of Society Bic S.A. Vs. Chargin Ind. Ltd 2014 4 NWLR Pt. 1398 497. In the case of Madukolu Vs. Nkendilum 1962 2 SC NLR 341 a court has jurisdiction when the subject matter is within its competence, it is properly constituted and any condition precedent to the assumption of jurisdiction have been fulfilled. In any case jurisdiction itself has two facets, both procedural and substantive. Procedural can be waived while substantive cannot be waived. The defendants objection in this case falls within the realm of substantive. Therefore it is in that context that this ruling shall be considered; Now what is the claim of the claimant in this suit over which jurisdiction of the court is being challenged in respect of legal capacity? A cursory look at the claims shows that the claimant salary was stopped by the defendants and he wants that stoppage to be corrected or rectified among other sundry ancillary reliefs. For this reason, the claimant has sued his employer, the News Agency of Nigeria and its Managing Director. The objector has asked this court to strike out the entire suit or in the alternative strike out the name of the 2nd defendant for being not a juristic person. The question again is; what is legal personality? Legal personality refers to the particular device by which the law creates or recognizes units to which it ascribe certain powers and capacities; it is the legal status of one regarded by the law as a person; the legal conception by which the law regards a human being or an artificial entity as a person. An artificial entity as applicable to this case under consideration is an entity or a legal entity, such as a corporation, created by law and given certain legal rights and duties of a human being, a being, real or imaginary. In fact, it is a fictitious person. Section 1 (1) and (2) of the News Agency of Nigeria Act Cap N85 LFN 2004 has these to say; 1. There is hereby established a body to be known as the News Agency of Nigeria hereafter in this Act referred to as the “Agency” 2. The Agency shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. From this recited portion of the law, it is crystally clear that the first defendant is a legal entity, legal person, an artificial personality. The issue of striking out the entire suit as prayed by defendant counsel do not therefore arise and indeed cannot arise. The 2nd defendant i.e the Managing Director of the 1st defendant is an appointee, an employee, a staff of the first defendant. By the provision of section 5 (3) of the News Agency of Nigeria Act Cap N85 LFN 2004, the Managing Director shall be responsible for the execution of the policies and objects of the Agency and shall see to the day to day running of the affairs of the Agency and carry out such other duties as may be directed from time to time by the board. It is also interesting and worthy of note that the 2nd defendant, the Managing Director is listed in section 3 (1) (e) of the said law as a member of the board of the 1st defendant. The nagging or reoccurring question that comes to mind is this; can this action be effectively and completely determine without the presence of the 2nd defendant? In the case of ADH Ltd Vs. Minister FCT Abuja 2013 8 NWLR Pt. 1357 SC 493; The Nigerian Supreme Court held as follows; A person can be joined as a defendant where he is (a) A necessary party because the plaintiff’s case or the defendants case in the existing action cannot be effectively and completely determine without the joinder; or (b) A desireable party because of his interest in the subject matter by the decision in this suit. In my considered view and based on the averment in the statement of claim and the reliefs sought in this suit, this suit can be completely and effectively determine by this court without the presence of the 2nd defendant. Moreover, the 2nd defendant is an employee of the 1st defendant just like the claimant. The law creating the 1st defendant expressly and directly made the 1st defendant a corporate legal entity capable of suing and being sued; There is no portion in the Act where such legal status is conferred on the 2nd defendant. In any case, the claimant can effectively enforce his judgment if he succeeds in his claim against the 1st defendant without the presence of the 2nd defendant. Consequently, I hold that the 2nd defendant is not a desirable, proper or necessary party in this suit. The alternative prayer of the defendant therefore succeeds as the name of the 2nd defendant is hereby struck out of this suit; Ruling is entered accordingly and I make no order as to cost. ----------------------------- Hon. Justice P.O Lifu JP. Judge