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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 20th November, 2014 SUIT NO: NICN/ABJ/159/2013 Between: Mohammed Yiyah and 198 Others Claimant/ Applicant And Bureau of Public Enterprise and 5 Others Defendants/ Respondent REPRESENTATION 36th 44th, 13th, 45th, 195th, 14th, 37th, 12th, 190th , 79th , 169th , claimants present; defendants and other claimants absent. S. I. Ugbe Esq. with Wilfred Akenuwa Esq. for the claimants and parties seeking to be joined; Ayodele Babalola Esq. with Hammed Ogunbiyi Esq. for the 1st -3rd defendants, Asari Inameti (Miss) for the 5th & 6th defendants. RULING By a Motion on Notice dated and filed on the 1st of July 2014, the applicants in this motion sought for an order of court joining them as claimants in this suit and also granting them an order reflecting their positions as claimant in the processes filed in this suit, the application is supported with a 10 paragraphs affidavit and a written address wherein the applicants raise an issue as to their entitlement to the grant of the order being sought. The applicants supported their position with exhibits A,B, and D which reflected their letters of engagement and disengagement. Counsel submitted that the applicant should be allowed to join as co-claimants because they have the same interest, rights and remedies as the existing claimants. Counsel urged the court to allow the applications to avoid multiplicity of actions. The applicant also filed a further and better affidavit of 16 paragraphs with two exhibits. In opposition to the motion for joinder the respondent filed a counter affidavit of 8 paragraphs and a written address wherein counsel raised 3 issues for determination namely: (1) Whether the present application for joinder and the affidavit in support of same are not incompetent. (2) Whether the joinder of the parties seeking to be joined will not amount to a misjoinder of parties and cause of action. (3) Whether the claimants are entitled to an order of this Honourable court for leave to amend the complaint and other processes filed in this suit; On issue one, Mr. Babalola submitted that there is no sufficient materials before the court to enable it exercise its discretion in favour of the grant of the application. This is so because counsel submitted further, that the present claimants were the person that deposed to the affidavit. This counsel said, means, the party seeking to be joined had not depose to any affidavit before the court and in such circumstances, the application cannot be granted. Counsel cited the cases of Uchendu Vs. Ogboni 1999 5 NWLR (Pt. 603)337 at 352 Re: Yaradua 2011 17 NWLR Pt. 1277 567 at 585 paragraph E-G. Edu Vs. comm. For Agric 2000 12 NWLR Pt 681 316 at 334 – 335. Counsel urged the court to discountenance the prayers and refuse same as the parties seeking to be joined did not depose to the affidavit rather it was the claimant through the lawyers secretary. Counsel contended further that in the circumstances where the claimants lack the Locus standi to bring this application, the application becomes incompetent as the court has no jurisdiction to entertain same. Counsel call in aid the cause of A.G. Anambra State Vs. AG. Federation 2007 12 NWLR Pt. 104 7 4 at 94. On issue 2, counsel to the respondent submitted that the parties seeking to be joined have different contracts of employment with different terms and conditions with different dates of engagement and in the absence of any collective agreement, applicants cannot enjoy any exercise of discretion in their favour; it is also contended by the counsel that granting a joinder order in this circumstances will result in a misjoinder of parties and Misjoinder of cause of action. Counsel call in aid the case of CC. B Nig Plc Vs. Rose 1998 4 NWLR 37 AT 45 Paragraphs A-C Counsel also contended that the claimant in this case cannot raise a cause of action for the applicant on a contract in which they are not parties to; consequently counsel submitted that this action can be completely and effectively settled without the applicants as there is no need for a joinder of the applicants Edet 1993 4 NWLR Pt. 28 7 288 at 298 -299; Umar Vs. Onikata 1999 3 NWLR Pt. 574. Counsel went further to assert that a party to be joined in a suit must be a necessary party and since the present of the applicant in this suit is not necessary for the just and fair determination of the suit, and no irreparable damage or injury will be done to their non-joining in this suit, their application should be refused. Counsel cited the case of Guda Vs. Kitta (1999) 12 NWLR Pt. 629 21 at 49. On issue three, Mr. Babalola submitted that this court should not exercise it discretion in favour of the applicant since issues 1& 2 goes against the application. It is further argued that the essence of an amendment being sought will not aid the determination of the dispute on the merit since the application itself has no merit. Counsel finally urged the court to dismiss the application for joinder. I have heard counsel on their submissions, authorities and the issues submitted for determination; it is on record that on the 9th of June 2014, this matter was adjourned for adoption of final written addresses of counsel against the 31st of July 2014 after the conclusion of hearing. On the 2nd of October 2014, the application for joinder, the subject matter of this ruling was heard. Counsel brought this application to join twelve individuals as co-claimants in this suit and also seeking an amendment of the entire processes filed in this suit to reflect the joinder if granted; In the course of his argument, counsel abandoned the counter affidavit sworn to and filed on the 15th of August 2014. That affidavit is hereby struck out. In an application of this nature, the court is not left in the dark as to the guiding principles; In the case of Hyson Nig Ltd Vs. Ifeoma 2008 11 NWLR Pt. 1097 at 1 the court of appeal held that; “The joinder of parties in a suit is dictated by the need to have before the court such parties as would enable it to effectually and completely adjudicate upon and settle all question in controversy in the suit.” The question then is, in what way will the presence of the parties seeking to be joined help the court to completely, fairly and effectually deal with the suit at hand? In other words, can this court fairly, completely and effectually decide this suit in the absence of the parties seeking to be joined? The court is expected in the interest of justice to join as plaintiff or defendant anyone who may have a stake in the subject matter or the suit or may be affected by the decision. See the case of Azubuike Vs. PDP 2014 7 NWLR (Pt 1406) 292. In effect, is the party seeking to be joined likely to be affected in the decision of this suit if they are not joined? In another context, how will the interest of the party seeking to be joined be prejudiced or adversely and irreparably affected if they are not joined? A perusal of the affidavit of the party seeking to be joined as plaintiff has not provided me with the necessary and favourable answers to the questions raised above to enable me exercise the discretion of this court in their favour. The reason stated in their affidavit to the effect that they have a common right and interest to protect and exercise is not sufficient as this right can be exercise and grievances ventilated in a separate suit without necessarily been timed barred since they are claiming for money already earned. The applicant also stated in their supporting affidavit that they have first become aware of the pendency of this suit by their other colleagues and ex staff of 2nd and third defendants. This reason as stated in paragraph 6 of their supporting affidavit goes a long way to show that they have been sleeping on their right. If not, why should they wait for other people or ex-colleagues to activate their rights before they think of their own? Equity aids the vigilant. The case have been in court since January 20th 2010. The applicants are just waking up from slumber when parties have closed their cases ready and adjourned for adoption of counsel’s final written addresses; delay defeats equity. This court by section 13 of the National Industrial Court Act 2006 is enjoined to administer law and equity concurrently. The grant or refusal of an application for joinder is an exercise of discretion of court. See Azubuike Vs. PDP (Supra). Such exercise of discretion, as a rider, must be carried out judicially and judiciously. Discretion is the art of being discrete. It is in this vein that court has to be very wary in considering such application particularly at the stage of conclusion of trial as in this case. It is in the interest of justice to grant a joinder that will necessitate the case almost starting afresh to enable the applicants present their individual contract terms and condition through an amendment of the entire court processes? I think doing so at this stage will overreach and will be prejudicial to the respondent and to the court who is at the verge of judgment. Since the applicants can conveniently institute their separate suit, I hold that it is against the interest of justice to join them as co-claimants in this suit. The application for joinder therefore fails and it is hereby dismissed. I make no order as to cost. ---------------------------- - Hon. Justice P.O Lifu (JP.) Judge