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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Thursday 18th December, 2014 SUIT NO: NICN/ABJ/45/2014 Between: Hon. Justice Idris Habib Shall Claimant AND National Judicial Council and 6 Others Defendants REPRESENTATION Parties absent; Chris Alashi Esq. with Akin Ayodele for the claimant; H. M. Ibega Esq. for the 1st, 2nd, 6th and 7th defendants; No legal representation for the 4thand 5th defendants. RULING By a Notice of Preliminary Objection (NPO) dated the 21st of May 2014 the 3rd defendant sought for an order of this court striking out the name of the 3rd defendant i.e the Attorney General of the Federation and Minister of Justice from this suit as presently constituted under order 15 of the rules of this court on the following grounds: 1. The suit does not disclose a cause of action against the 3rd defendant 2. The third defendant is not a necessary and or proper party to this suit. The prayers of the objector is predicted further on the ground that throughout the entire gamut of the claimants claim including his statement of facts, there is no disclosure of cause of action to make the third defendant a necessary or proper party in this suit. The application is supported by a written address wherein, counsel to the third defendant, Mr. John E. Aduma formulated two issues for determination namely (1) Whether having regard to the entire circumstances and facts of this case, any cause of action has been disclosed against the 3rd defendant. (2) Whether having regard to the entire circumstances and facts of this case, the 3rd respondent is a necessary and or proper party to this suit. On issue one MrAduma referred the court to order 15 of the rules of this court, paragraph 2 of the claimants statement of facts and the case of Chief Dr. Irene Thomas Vs. Most Rev. Timothy OmolayoOlufosoye 1986 1 NSCC 323 at 332 and posited that since the 3rd defendant is not in any way involved in the determination of the question as to civil right and obligation of the claimant, the name of the 3rd defendant should therefore be struck out. On issue two, counsel submitted that the presence of the 3rd defendant before the court is not necessary before the issue in controversies can be effectively and effectually or completely settled. Counsel called in aid of this submission the cases of Buhari Vs.Yussuf 2003 14 NWLR Pt. 841 446 at 516; Counsel also referred the court to the meaning of “Indispensable Parties” in Black Law Dictionary, the cases of Union Beverages Ltd Vs. Pepsi cola Int. Ltd 1994 3 NWLR Pt. 330 1 at 17; Buhari Vs. Obasanjo 2003 17 NWLR (Pt. 850) 423 at 482; Ahmed Jidda Vs. Malakachallah 1999 4 NWLR (Pt. 599) 426 at 432; Mobil Production NigUnltd Vs. ISEPA 2002 12 SC 26 at 44. Counsel contended further that there is nowhere in the statement of facts of the claimant where it was shown that the 3rd defendant has such an interest in the controversy as the 3rd defendant who is not a member of the National Judicial Council, nor a committee members that investigated the claimant, neither do the Attorney General of the Federation issued the letter that terminated the appointment of the claimant; Counsel submitted further that there is no reason whatsoever to join the 3rd defendant in this suit as he is not a necessary or proper party whose presence in this suit is indispensable. It is also the argument of counsel to the 3rd defendant that since the Attorney General of the Federation is not a member of the government of Bauchi State, he cannot be a necessary party to this suit in view of the claims and reliefs in this case. Consequently, counsel submitted, since the 3rd defendant was not involved in the selection and appointment processes including the termination process of the claimant, his name should be struck out in this suit. In his response, counsel to the claimant Akin AyodeleEsq raised two issues for determination in his address namely: 1. Whether this application is competent and whether the prayers therein can be granted particularly at this stage of the proceedings. 2. Whether the third defendant is a necessary and proper party to the suit in law and as per the writ of summons and statement of claim. On issue one, counsel submission that since the objector has not filed a defence and he has brought this objection, to determine this suit in limine, the application is improper and incompetent. Counsel cited cases such as IdachabaVsIlona 2007 6 NWLR Pt 1030 277 at 297; JamboVs Government of Rivers 2007 17 NWLR (Pt. 1062) 198 at 223; BamisileVsOsasuyi (Pt. 1042) 225 at 261; and also refered the court to the provisions of order 16 rule 1 and 2 of the Federal High Court.Civil Procedure Rules 2009. It is the submission of the counsel that since the 3rd defendant has demurred and demurrer has been abolished, the Notice of Preliminary Objection (NPO)in contention is incompetent before the court. Counsel then urged the court to dismiss the Notice of Preliminary Objection (NPO) with substantial cost. On the issue of cause of action, learned counsel for the claimant urged the court to exercise great caution and circumspection in exercising its discretion in this regard. He posited that once the statement of claim and in this suit, statement of facts discloses some cause of action or some question fit to be decided, it is sufficient for the court to hold that a cause of action is reasonable. Counsel opined that the weakness or unlikely success of the claim is not a consideration for the court in exercising its discretion which should be exercised judiciously and judicially. Counsel urged the court to rely on the decision in Idachaba Vs. Ilona (Supra) and consider the averments in the pleadings and see if they discloses cause of action or raise some questions fit to be decided by the judge. Counsel urged the court to hold that a reasonable cause of action has been raised in the pleadings against the defendants and by extension the 3rd defendant. On issue two, counsel submitted that the 3rd defendant is a necessary party by virtue of paragraphs 2 and 30 of the statement of facts, section 150 of the 1999 Constitution of the Federal Republic of Nigeria. Counsel also referred the court to the learned Author in their books; Compendium of Laws under the Nigeria Legal System; Powers and Duties of the Attorney General in Nigeria 2004, Green World Publishing Co. Ltd. PP 179 – 180 where it was stated inter alia that where a government official or agency commits a civil wrong that injures the citizen, the agency or the Attorney General jointly. Counsel also relied on the case of Elelu –HabeebVs NJC 2010 All FWLR Pt. 536 at 494 to buttress his submissions. Counsel finally urged the court to dismiss the entire objections. On his own part, counsel to the 1st, 2nd, 6th and 7th defendants P.B. Daudu Esq. maintained an argument to the effect that since this suit borders on the interpretation of the constitution of the Federal Republic of Nigeria; Elelu’s case is a good authority and as such the 3rd defendant is a necessary party and he urged the court to so hold. I have heard learned counsel on their various positions, submissions and the legal authorities relied upon. The issues of cause of action and joinder of parties invariably goes to the jurisdiction of court. In determining jurisdiction, it is the claim endorsed on the writ of summons (complaint) or stated in the statement of facts (claim) that will be considered. In other words it is the claimants claim that cloths the court with or denies it the jurisdiction to adjudicate on a matter before it; whatever is brought before the trial court by the claimant for determination alone will determine whether or not a trial court is competent to entertain or adjudicate on the matter. The court should not examine the defence at all (if any) although one may be filed in accordance with the rules of court; See the case of P & CHS Co Ltd Vs. MigfoNig Ltd 2013 3 NWLR Pt. 1333 at 555. On the issue of demurer raised by the claimant counsel, it is my humble view that points of law raised in the statement of defence can be set down for trial as a preliminary issue of law and heard as done is this case. I have looked at the rules of this court. There is no provision known to me where such practice is abolished or outlawed. Moreover, the defendant in this Notice of Preliminary Objection (NPO) filed its defence on the 26th of May 2014 contrary to the submission of the claimants counsel. By paragraph 11 (a) and (b) of the statement of defence of the 3rd defendant, it averred as follows The3rd respondent’s presence in this suit is not necessary and shall before the commencement of hearing in this suit raise a preliminary objection and urge this Honourable Court to strike this suit against the 3rd respondent on the following grounds: (a) The entire gamut of the claimants claim as highlighted by his complaint and statement of facts has not disclosed any cause of action against the 3rd defendant. (b) The claimant has not in any way howsoever been shown to be a necessary and or proper party in the entire gamut of the claimants claim as highlighted by the complaint and statement of facts. With the above averments, the 3rd defendant has put the claimant on notice as to his intention to challenge the jurisdiction of the court. In fact, issues of jurisdiction which can be raised at any time in its variegated meaning need not be raised in the pleadings before being set down as a preliminary point of law. In fact, any how we look at it, the 3rd defendant is allowed to demurer and therefore this application is properly brought and competent and I so hold. In determining the cause of action in a suit, the only document which the court will look at are the writ of summons (Complaint) and the statement of claim. Cause of action itself means the aggregate of facts which when proved will entitled a claimant to a remedy against a defendant. See also the case of Society BIC SA VsCharginInd.Ltd SC 2014 4 NWLR (Pt. 1398) 497 Also in determining reasonable cause of action, it is irrelevant to consider the weakness of the claimants case. What is important is to examine the averment in the pleading and see if they disclose some cause of action or raise some question fit to be decided by the court; See the cases of FCDA Vs. NAIBI 1990 3 NWLR Pt. 138 270 at 281; AkanbiVsAlao 1989 3 NWLR Pt. 108 118 at 140 and 153; I have gone through the claims and reliefs of the claimant in this suit. The civil rights of the claimant is herein submitted to this court for determination. Cause of action in this context means a cause with some chances of success when only the allegations in the pleadings are considered. See OshobojaVsAmoda 1992 7 SCNJ 317 at 326. The case may be weak and may not likely succeed but when the requisite factual elements are present, there is a cause of action and the court should provide all the opportunities open to a litigant or citizen to ventilate that grievances. The declaration and other specific orders being sought in this suit including the particulars contain in the statement of facts are enough ingredient to constitute reasonable cause of action in the aggregate and I so hold. As to the status of the 3rd defendant and in relation to the issue of misjoinder, it is trite law that a necessary party is a person or entity whose interest is at stake in the outcome of a law suit whose absence as a party in the suit prevents a judgment on all issues. That necessary party therefore is an indispensable person whether natural or artificial whose presence is necessary for the effectual and complete adjudication of the disputes presented before the court. See the case of AdepeitiVsGovt of Ondo State 2012 LEPELR 12. By section 150 of the 1999 Constitution of the Federal Republic of Nigeria as altered; The 3rd defendant in this suit is the chief law officer of the Federation; By virtue of that position, he is the custodian of the law of the land. He conducts civil litigation as well in cases involving the government or its agencies.Where a citizen is a victim of the civil wrong committed by the government or its agencies, the 3rd defendant can also be sued jointly in addition to that agency or office. The obedience of the law by all persons and institutions including the 1st, 2nd,4th to 7th defendants in this case should be and is of interest to him. See the cases of A.G. Federation Vs. ANPP 2003 FWLR Pt 167 839; 2003 15 NWLR (Pt. 844) 600. This case substantially involves the interpretation and application of the constitution of Nigeria 1999 as altered. Whether the 3rd defendant is directly involve in the conflict or not, it is my considered view based on the authority of EleluHabeeb Vs. NJC 2010 All FWRL Pt. 536 P 494 at 505 -509that the 3rd defendant being the custodian of the constitution which he has sworn to uphold, protect and defend, is a necessary and indispensable party moreso that the 1st and 2nd defendant, who issued the claimants termination letter are creation of the constitution. The constitution also creates the offices of the 3rd, 4th and 5th defendants while the 6th and 7th defendants were members of the 1st defendant at the time material to the institution of this suit. On the whole and based on my reasoning and conclusion in this ruling, I hold that the claim herein discloses a reasonable cause of action against the 3rd defendant and as such he is a necessary party. The Notice of Preliminary Objection of the third defendant fails and is accordingly dismissed. I make no order as to cost. The substantive case shall proceed to trial. ----------------------------- Hon. Justice P.O Lifu JP. Judge