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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 10th March, 2014 SUIT NO: NICN/ABJ/176/2013 Between: Mrs. Marian Abiakwe Claimant AND Prof. G.A.T. Ogundipo and 4 Others Defendants REPRESENTATION Claimant present. Defendants absent; C.E. Odun Esq. holds the brief of E.E. Ita Esq. with R.O. Mohammed (Miss) and A .J. Shuaibu Esq. for the defendants; No legal representation for the claimant. RULING By a Motion on Notice brought pursuant to order 3 rule 3 of the National Industrial Court (NIC) rules and under the inherent jurisdiction of the court as preserved by section 6 (6) (a) of the 1999 constitution of the Federal Republic of Nigeria Federal Republic of Nigeria (FRN) as amended, the claimant/applicant sought for the leave of this court to amend her writ of summons or complaint, amend her statement of facts or statement of claim and leave to file additional witness deposition of another witness which was earlier omitted when this suit was filed. The defendants in this case also has a pending motion in this suit wherein by way of a Notice of Preliminary Objection (NPO), they sought for this court order dismissing this suit in limine on the ground that the court has no jurisdiction on issues bordering on landed property, as the claim is vague and discloses no cause of action in addition to the fact that the court cannot restrain a completed act as claimed by the claimant. Considering the age of the case coupled with the fact that this is a transferred matter from the Federal High Court, this court directed counsel to argue their respective motion as the interest of justice dictates that the two applications should be taken together. Moreover, in view of the fact that one of the motions is trying to kill and the other is trying to give life, the court permitted the claimants counsel to move his application for amendment first. In his motion for amendment dated the 21st of November 2013, counsel to the claimant Mr. F.C. Ikpe holding the brief of Chris Nwala Esq. sought for reliefs from this court which affects the writ, statement of facts and filing of additional deposition of witness. In other words, the claimant is seeking for an amendment of his writ, statement of claim and his witness statement on oath. The application is supported with a 7 paragraphs affidavit deposed to by the claimant herself, a proposed amended statement of claim, and a written address. In the said written address counsel submitted that his motion is brought under order 17 rule 1,2, 3 and order 26, rules 1,2,3, and 4 of the Federal High Court rules 2009. Contrary to what is on the face of his motion. I think this is a misnomer which the court can overlook in the interest of substantial justice. Counsel submitted that this court has the power to grant such an amendment as prayed as doing so will assist the court in the determination of the real question or questions in controversy between the parties. Counsel cited the case of Oja Vs. Ogboni and 7 others 1976 I NMLR 95. Counsel posited that the only inhibiting factors against the grant of these prayers for amendment are absent in this application. These factors counsel outline as: 1. Where the amendment will entail injustice to the defendant 2. Where the application is brought in bad faith. Counsel referred this court to the case of Copper Vs. Smith 1884 24 Ch’ D 700 710 and 711; Nwadialo on Civil Procedure 2nd Edition page 461 and urged the court to follow the supreme court decision in Ehidimhen Vs. Musa 2000 77 LRCN 1016 at 1045 and 1047 in adopting a liberal interpretation to this application for amendment. In opposing the application for amendment counsel to the defendants Mr. E.E. Ita leading Miss R.O. Mohammed Esq. filed an 8 paragraph counter affidavit (all sub paragraphs inclusive) and a written address dated the 22nd of January 2014 wherein Mr. Ita, formulated two issues for determination namely (1) Whether this application by the claimant is not thought to overreach the 1st – 4th defendants. (2) Whether this application by the claimant amount to an amendment to which this court can exercise its discretion to grant an amendment. On issue one counsel submitted that amendment is not a right but concedes that this court can grant it at any time before judgment. Counsel cited the case of UBN Plc Vs. Sparkling Breweries Ltd 1997 3 NWLR Pt. 471 page 32 at 42 C –D where the word “amendment” have been define to mean “to free from error’ “improve,” “amend” “correct”. Counsel in this regard also relied on the cases of Bogban Vs. Diwhre 2005 16 NWLR (Pt. 951) page 274 at 303 paragraph F-G. Adekeye Vs. Akin Olugbade 1987 3 NWLR Pt. 60 P. 214. Counsel further outlined the principles that govern amendment of pleadings to include (1) To ensure substantial justice (2) To include matters that arose ex improviso at the trial (3) To settle the real issue in controversy (4) To bring the pleadings in line with the evidence. Counsel call in aid the cases of Diamond bank Ltd Vs. Ugochukwu 2008 1NWLR Pt. 1067 page I at 36 paragraph G-H. world Care Ltd Vs. Senbanjo 2004 NWLR Pt. 654 Pg 669 at 681 paragraph D-G. Counsel contended that the amendment being sought by the applicant is not to ensure substantial justice but to make out a new case altogether and since issues have been joined on the existing pleadings, the defendants will be prejudiced and overreached. Counsel further drew the attention of the court to the facts that the claimant is seeking for the following far reaching amendments after 3 years and 7 months of the institution of this suit at the federal High Court. These proposed amendment includes; (1) Four new reliefs in the writ (2) To delete 18 paragraphs of the statement of claim (3) 33 new paragraphs into the statement of facts/claim. (4) Particulars of vindictiveness (5) New witness deposition Counsel urge the court not to allow the claimant to bring a new suit in the name and under the guise of an amendment. Counsel argued that the amendment sought herein by the claimant is trying to overreach, embarrass and spring a surprise on the defendants. Counsel relied on Baba solooye Vs. Gov. of Oyo state 1993 7 NWLR Pt. 306 451 George Vs. Dominion Flour Mills ltd 1963 15 CNLR 117. On issue two, counsel further conceded the fact that amendment can be done at any time before judgment as decided in the case of UBA Vs. Ogboh 1995 2 NWLR Pt. 380 page 647 paragraph A-D . Counsel contended further that where many paragraphs of a pleading are changed or new ones or facts are added, a substitution would be requested instead of an amendment since the materiality of the amendment sought is vital. Counsel call in aid the case of Akaninwo Vs. NSIRIM 1997 9 NWLR Pt. 520 page 225 at 281 paragraph G-H. Counsel also submitted that it is because the claimant’s original complaint has no cause of action, that is why a substitution is hereby being sought by the claimant through an amendment. Counsel urged the court to hold that the claimant has no cause of action and as such the court has no Jurisdiction as there is no wrongful act or any consequent damage arising there from for the court to adjudicate. Counsel cited the cases of Bello Vs. AG. Oyo State 1986 5 NWLR Pt. 45 P. 828. Savage Vs. Uwaechia 1972 3 SC 214 at 221. Jolasun Vs. Bamgboye 2010 18 NWLR Pt. 1225 Pg 285 at 308 paragraph F-H. Abasi Vs. Labiyi 1985 WRNLR 12 page 520 -521 paragraph H-A. Counsel contended further that academic issue as presented by the claimant in this application should not be entertained. Moreover, counsel opined that order 3 rule 3 of the rules of this court that forbids amendment of the complaint is being breached as what is required of the claimant to do is to amend his claims in the statement of facts /claims since the statement of claim supersedes the writ; counsel submitted that the claimant can only extend the claim but not to substitute or set up a new claim through an amendment. Counsel referred the court to the cases of Eze Vs. George 1993 2 NWLR Pt. 273 P. 86 Teller Vs. Akere 1958 NWLR 26. Lahan Vs. Tarr 1972 I ANLR Pt. 2 P. 217 Adomba Vs. Odeeze 1990 I NWLR Pt. 125 page 165 at 179. Counsel finally urge the court to discountenance the submissions of the claimant and refuse all the prayers as contained in the motion as granting it will work substantial injustice and overreach the defendants. Counsel call in aid the cases of Samson Salako Vs. Babatunde William 1998 II NWLR Pt. 574 at 505 Hong Vs. Federal Mortgage Finance Ltd 2001 FWLR Pt. 62 at 1898. In his reply on point of law, F.C. Ikpe Esq. urged the court to discountenances the authority of Salako Vs. William cited by the defendant counsel as the case is not applicable to this motion for amendment since no evidence have been led in this matter. Counsel commend the case of Ashco Nig. Ltd Vs. NASD and GREEN 2010 3 NWLR Pt. II 81 at P. 302 and urge the court to hold that it is the ultimate right of the claimant to amend. Before I delve into the analysis, evaluation and conclusion on the motion for amendment let me consider the Notice of Preliminary Objection (NPO) filed by the defendant challenging the jurisdiction of this court over this matter. On the 28th of November 2013, the 1st -4th defendant counsel E.E. Ita Esq. filed a Notice of Preliminary Objection (NPO) challenging the jurisdiction of this court seeking for the dismissal of this suit in limine on the following grounds. (1) That by a combined reading of the provisions of section 254 (c ) of the constitution of the Federal Republic of Nigeria (FRN) 1999 as amended and section 7 of the National Industrial Court (NIC) Act 2006, this court lack the jurisdiction to hear and determine claim a, b and c of the complaint, same seeking and /or claiming title to landed property. (2) That claim c is vague and discloses no cause of action. (3) That claim e which claimant seek the Honourable court to restrain is a completed act. The Notice of Preliminary Objection (NPO) is supported with a 13 paragraphs affidavit and three exhibits. There is also a written address dated the 27th of November, 2013 wherein the defendants counsel E.E. Ita Esq. formulated 2 issues for determination namely: (1) Whether or not from the facts of this case as presented by the claimant in her statement of facts, this court has jurisdiction to hear and determine claims a, b and d all being claims to a right over landed property. (2) Whether or not this suit discloses any reasonable cause of action. On issue one, counsel submitted that by the combine provisions of section 254 (c ), of the 1999 constitution as amended, section 7 & II of National Industrial Court Act (NICA) 2006, this court has no power to entertain any compliant, grievances or suit bordering on landed property. Consequently counsel urge this court to strike out claims a, b and d of the claimant in this suit as they are offensive of the jurisdiction of this court. Counsel contended further that for the court to, have jurisdiction, the following conditions must be present: (a) The proper parties are before the court (b) The subject matter falls within the jurisdiction of the court (c) The composition of the court as to members and qualifications (d) The suit commenced by due process of law and upon fulfillment of any condition precedent as assumption of jurisdiction. Counsel cited in support of these principles, the cases of CBN Vs. AP Nig Ltd 2005 3 NWLR Pt. 911 Pg. 152 at 177 paragraph E-G; Ajoa Vs. Eble 2005 5 NWLR Pt. 918 page 400 at 414 -415 paragraph H-C Sken consult Vs. Ukey 1981 1 SC 6 Madukolu Vs. Nkemdilim 1962 2 SCNLR 341 It is counsel submission that the subject matter of this suit do not fall within the contemplated jurisdiction of this court and since the condition stated above must all be concurrently present, the suit ought to be struck out as claims a,b, and d do not fall under the powers of this court. Counsel cited the cases of Okolo Vs. UBN Plc 2004 All FWLR Pt. 197 page 981 at 992 paragraph F. FGN Vs. Oshiomohle 2004 3 NWLR Pt. 860 page 305 at 324 paragraph B. to buttress the fact that acquiesance of parties cannot confer jurisdiction neither can parties waive issue of jurisdiction. Counsel cited further the cases of Mobile Producing Nig unLtd Vs. Monokpo 2004 All FWLR Pt 195 P. 575 at 657 paragraph H – A. ; BABA Vs. Habib Nig Ltd 2001 7 NWLR Pt. 712 page 496 at 507 paragraph B-C; Ilorin Vs Banson 2000 9 NWLR Pt 673 page 570 at 580 paragraph E. to buttress his submission that this suit ought to be struck out for want of jurisdiction. On issue 2, counsel urge the court to hold that there is no deduceable cause of action made out in her pleadings against the defendant since there is no justiceable legal dispute made out against the defendant by the claimant. Therefore, counsel contended relief four being a dead issue cannot be justiciable or resurrected as injunction cannot be granted on already completed act. Counsel call in aid the cases of Ekanem Vs. Reg trustees of the Church of Christ 2012 All FWLR Pt. 637 P. 776 at 788 paragraph A-B UBA Vs. BTL Industries 2004 18 NWLR Pt. 904 page 180 at 227 -228 paragraph G-B Ladejobi Vs. Oguntayo 2004 18 NWLR Pt. 904 Pg. 149 at 173 paragraph C-E Gadi Vs. Male 2010 7 NWLR Pt. 1193 page 225 at 275 paragraph E-G Miniyas Nig Ltd Vs. Ashapa 2011 Pt. 242 Pg 85 at 107 paragraph C-D. Counsel contented also that since the claimant’s appointment was terminated on 7th May 2010, before she filed this suit at the Federal High Court coupled with the fact that she had collected her salary in lieu of notice, she has not come to court with clean hands worthy of any equity or equitable relief such as injunction in her favour. Counsel therefore urges the court to strike out relief ebordering on injunction. Counsel finally cited the case of Adekoya Vs. Sodipe 2012 all FWLR Pt. 635 P. 895 at 914 -915 paragraph H-B and urge the court to dismiss the suit for disclosing no cause of action and for lack of jurisdiction. On 22nd of January 2014, the defendant counsel E.E. Ita Esq. also filed a written address on the phrase “incidental thereto” as used in the third alteration Act. Counsel submitted that matters incidental thereto must be related connected with workers job duties. The right, he submitted must be related to the performance of claimants job duties with the 4th defendant for the court to assume jurisdiction. Counsel conceded that the right of the claimant to be accommodated in the staff quarters by the defendant is related, connected and incidental to her employment but the right to purchase the staff quarters which is a landed property under the monetization policy is not incidental to employment of the claimant. Mr. Ita contended that the right to purchase the landed property cannot in any way be related to claimants employment as such right to purchase the landed property cannot and is not a term or condition of her employment. Counsel therefore listed the following as forming part of the issues incidental to employment. (1) Salary /wages and allowances (2) Accommodation (3) Welfare (4) Transport (5) Medical care (6) Safety and (7) security counsel urge the court to strike out this suit as the right to purchase the 4th defendant’s property is not part of the necessity for the performance of the claimants job duties. In response by way of opposition the claimant’s counsel Mr. F.C. Ikpe holding the brief of Chief chris O. Nwala Esq. adopted the issues formulated by the defendant counsel for determination in this Notice of Preliminary Objection (NPO) but added the third issue which is; In a situation where two applications are pending, one for striking out a suit and the other for amendment of the same suit, which of the applications should be given priority and heard first? The one seeking to amend or the one seeking to strike out? In answering this question, counsel cited the case of NALSA Vs. NNPC 1991 8 NWLR Pt. 212 at 652. Mobil producing Nig Unltd Vs. Monokpo 2004 9 NRN at 48-49 and urge the court to take the application to amend first as a matter of priority and justice. Counsel referred this court to the cases of UBA Vs. Nworah 1978 11-12 SC I, Abu Vs. Ado 1986 3 NWLR Pt. 31 684 at 686. On the adopted formulated issues raised for determination by the defendant counsel submitted in response to the first issue as follows; The claim of the claimants centres on the welfare, condition of work and environment of the defendant which comes under the ambit of section 7 (1) (a) and 11 of the National Industrial Court Act (NICA) 2006. Counsel submitted further that the combine effect of section 1.2 and section 14 of National Industrial Court Act (NICA) 2006 including section 7 (1) (a) (ii) thereof gives this court the unfettered powers to deal with this kind of claims. In the opinion of Mr. Ikpe, the Federal High Court, in its wisdom transferred this suit to this court because this is the court that has jurisdiction. For this court to decline jurisdiction will be absurd in the circumstance. On issue 2 formulated by the defendant counsel, Mr. Ikpe submitted that issue of cause of action should not be raise or determine now until all issues have crystalised after the amendment. Counsel contended that the claims of the claimants contains three declaratory reliefs a, b, and c which alone constitute cause of action as envisaged by section 6 (6) (b) of 1999 constitution (as amended). Counsel refer this court to the case of Ikine Vs. Edjerode 2001 92 LRCN 3288 at 3320 FK. Dantata Vs. Mohammed 2000 78 LRCN 1422 at 1442 FG. Counsel submitted further that declaratory relief stands on it own and can be made even when there is no cause of action. Moreover prayer for injunction normally follow prayer for declaration. Counsel argued and cited the case of Obi Vs. INEC 2007 All FWLR Pt. 378 116. Counsel finally urged the court to discountenance the argument of the defendant and dismiss the preliminary objection and grant the amendment sought in the interest of justice. I have carefully and painstakingly gone through the various submissions and authorities cited by the contending parties in support of their respective positions As I have said earlier, I have decided to take the two applications together in the interest of justice. Since I have decided on this modus I intend to first of all look at the motion challenging the jurisdiction of the court without necessary compromising the need to balance the interest of justice as regard the issue of amendment which is a motion to give life. I am fortified by this position by the provision of section 37 (3) of the TDA Cap T8 Laws of the federation of Nigeria 2004 which says “Subject to the provision of this Act and of any rules or regulations made under this section, a body to which this section applies (1) May regulate its procedure and proceedings as it think fit, and shall not be bound to act in any formal manner” By section 35 of this same law the body to which this section applies are: The National Industrial Court Any arbitration tribunal Any board of inquiry Section 12 (2) (a) of the NICA 2006 also gives this wide and unfettered discretion to this court only in terms of regulating its procedure and proceedings. The central issue in the Notice of Preliminary Objection (NPO) filed by the defendants in this suit is the jurisdiction or other wise of this court to entertain the claimant suit as constituted. It is the claim in any particular case that determines jurisdiction. 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. See the case of P& C H S Co. Ltd Vs. Migfo Nig Ltd 2013 3 NWLR Pt. 1333 at 555 . In the regularized complaint filed by the claimant on 13/11/13 sequel to the order of this court, the claimants claims as follows. (a) An order of the Honourable court declaring the acts of defendants in refusing, to declare for sale the 4th defendant’s staff quarters in line with the Federal Government of Nigeria directives and guidelines on the sale of the Federal Government Houses in FCT Abuja to career public servants is wrongful and illegal. (b) An order of this Honourable court declaring that the acts of the defendant, by themselves or agents in surreptitiously setting up plaintiff as a result of the plaintiff’s husbands refusal to vacate his official quarters pending the determination of suit No. FHC/CS/104/2010, the consequent disciplinary committee set up with the threat and aim of terminating plaintiff’s appointment as a result there to is wrongful and illegal. (a) A declaration that the harassment of intimidation, victimization and threat of termination of plaintiff‘s employment is wrongful, illegal and unconstitutional. (b) An order of this Honourable court restraining defendants, their agents and privies from illegally and forcefully ejecting Plaintiffs from their residential quarties at Bayazhim kubwa Abuja pending when same shall be advertised for sale in accordance with the Federal Government. Guidelines on sale of Government. residential quarters. (c) An order of this honourable court restraining defendants, their agents and privies from terminating the plaintiffs employment or doing anything to plaintiff or plaintiffs employment as a result of their testimonies in the investigation of the alleged fraud in the 4th defendants council (d) Such further or other orders as the honourable court may deem fit to make in the circumstances of this case. Some of the portions of claimant’s statement of facts states. ‘7’ Sometime in 2009, a non governmental body and one Emmanuel Ebirim petitioned the Nigeria Police, the economic and financial crimes commission and published in the dailies fraudulent activities in the fourth defendants establishment. 9 ‘h’ that since after the sitting of the panel the defendant particularly the 1st, 2nd and 3rd defendants have continued to harass, intimidate, torment and persecute plaintiff on account of her evidence to the panel and on the basis of the fact that she refused to compromise the truth when she testified before the panel and EFCC. 9(i) plaintiff states that defendant are under a duty to ensure the sale of their residential quarters to employees including plaintiff on the principle of “Option of first right of refusal to the sitting occupant”. 11.“That plaintiff has received unjust tribulation persecution and victimization on account of giving evidence at the panel sitting ranging from queries, denial of benefits, deliberate posting of plaintiff and husband to the same office under the same boss as a punitive measure.” From the above quoted claims of the claimant, it is the right of anybody to approach this court to ventilate his grievances on labour, employment, workplace issues in general, unfair labour practice, matters arising from labour, welfare of labour, employee or worker and the interpretation and application of international labour practices and standards to those issues in our domestic court. Against this background, let me look at the statute creating this court since jurisdiction of a court is derived from statute creating or setting up that court. In the case of the National Industrial Court it is the third alteration Act and the NIC Act 2006 and other subsidiary legislations. By section 254 ( c) (i) of the 1999 constitution of the Federal Republic of Nigeria (FRN) as amended has this to say: Notwithstanding the provision of section 251, 257, 272 and anything contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an act of the National Assembly, the National Industrial Court (NIC) shall have and exercise jurisdiction to the exclusion of any other courts in civil cases and matters: (a) Relating to or connected with any labour, employment, trade unions, Industrial relations and matters arising from workplace, the conditions of service including health, safety, welfare of labour employee, worker and matters incidental thereto or connected therewith (b) Relating to, connected with or arising from factories Act, Trade dispute Act,, Trade Union Act, Labour Act, employee compensation Act or any other Act or law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Act or laws. (e) Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters. (a) Relating to or connected with dispute arising from payment or nonpayment of salaries, wages, pension gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial office or any civil or public servant in any part of the Federation and matters incidental thereto. From these selected portions of the third alteration Act, it is quite clear and undisputable that issues bordering on labour, employment, workplace, welfare of worker and matters arising, connected, incidental, relating thereto are localized in this court and this court only. The third alteration Act and its provision is yet to be interpreted by the supreme court as at today but the position stated above have been judicially confirmed by the court of appeal in the case of NUT Niger State Vs. COSST Niger state 2012 10 NWLR Pt. 1307 89. The defendant also contended that the claim C of the claimant is vague and discloses no cause of action. I find it very difficult to agree with this position. This is so because in determining cause of action, it is not proper to consider the weakness or otherwise of the claimants case but to examine the claimants pleadings and see if it raises or discloses some cause of action or question to be investigated and decided upon through trial. The claims quoted above from the claimants pleadings has justified this position and I so hold. Moreover, a cursory look at section 6 (6) (b) of the constitution 1999 of the Federal Republic of Nigeria (FRN) as amended will fortify this position. Section 6 (6) (b) “the judicial powers vested in accordance with the foregoing provisions of this section (b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person; It is my considered view that the plaintiffs claim though bordering on her civil right to participate in the due process of monetization of federal government landed property is a matter arising from work place, welfare, labour, employment and connected or incidental thereto. The claimant has raised a substantial justiceable legal dispute in her pleadings which cannot be determine in limine without getting into full scale trial. Whether claim ‘e’ is completed or not has not been raised in her pleadings. Consequently I hold that the court has jurisdiction to entertain her claim. Whether she will succeed or not is a different issue to be determine after trial. The Notice of Preliminary Objection (NPO) of the defendant is hereby dismissed as the same lacks merit. On the issue of the motion of the claimant seeking for leave to amend the writ, the statement of claim and to file additional witness deposition. I have condensed and narrowed down the issue for determination into a lone question which is Under what circumstance can an amendment be granted? It is trite law that an amendment of pleadings can be granted at any stage of the proceedings depending of course on the kind of amendment being sought by an applicant and the need to balance the interest of justice among disputants in a litigation process and contest. The aim of amendment is usually to prevent the manifest justice of the cause from being defeated or delayed. See the case of Adeniji Vs. Adeniyi 15 NWLR Pt. 1376 102 at 119-120 paragraphs H-B. Furthermore, in the case of Egwa Vs. Eguwa 2007 I NWLR Pt. 1014 it was held that parties to an action can amend their pleadings during or after trial or even after judgment or an appeal. The amendment being sought at this stage of the proceedings when issues have just been joined, pleadings are still being filed and exchanged, in my mind will allow all issues in controversy between the parties to crystalise. If issues are not allowed to crystalise through amendment of pleadings, it will eventually lead to multiplicity of actions capable of generating and engendering injustice which the court, particularly the trial court like this court is suppose to discourage. In other words, since evidence has not been led on either side and the case has not opened, this is the right time to grant any amendment to pleadings. It should be noted that general rule on amendment as was held by the Supreme Court in the case of Ipadeola and Another Vs. Abiodun Oshowole 1987 5 SCNJ 200 at 203 is that it is within the powers of the court to grant an amendment even if the amendment would add to the existing cause of action or substitute for a new cause of action provided the additional or the new cause of action arises out of the same or substantially the same facts as are contained in their pleadings. I think, this is exactly what has happened in this case In Ojiah Vs. Ogboni and Others 1976 I NMLR 95, the Supreme Court of Nigeria again was of the view that as a general rule, amendment should be allowed for purpose of determining the real question to be tried between the parties unless such amendment will (1) Prejudice the respondent or wrought injustice on him (2) The applicant is acting mala fide or by his blunder has caused the respondent some injury by which he cannot be assuage in monetary terms or cost. See also the cases of Oguntimehin Vs. Gubere 1964 I All NLR 176., Amadi Vs. Thomas Aplin & Co. Ltd (1972) I All NLR 409, Aribisala Vs. Adeyanju 2008 LPELR 3806 CA. In my humble view, I cannot see how the amendment being sought in this context will prejudice or wrought injustice on the defendant/respondent because they have the full right of a consequential amendment if they so desire. Injustice cannot be done to the defence as the trial has not commenced. Moreover, no injury has been caused by this application to the defendants/respondents that cannot be assuaged by monetary cost. The interest of justice in our jurisprudence demands that a party should not be prevented or shut out from crystalising the issues in controversies for the purposes of ventilating his/ her grievances. I so hold. This court is enjoins to concentrate and render substantial justice rather than technicality that will defeat equity. Moreover section 13 of the National Industrial Court Act (NICA) 2006 enjoins this court to apply the rule of equity in the interest of justice. In taking this position stated above, I am fortified and supported by section 14 of National Industrial Court Act (NICA) 2006 which has this to say; “ the court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the court think just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.” From this quoted, it is the interest of this court to discourage multiple litigations arising from the same set of facts or cause of action. Amendments of pleadings are one of the ways of achieving this objective. Order 3 rule 3 of the rules of this court has this to say; “A claimant may alter, modify or extend the claim without any amendment of the endorsement on the complaint; provided that the claimant may not completely change the cause of action endorse on the complaint without amending it” This order or provision including the proviso has completely accommodated the application of the claimant in this instance. I so hold. The defendants contended strenuously in their opposition to the motion for amendment on the ground that it is prejudicial and overreaching the defence in view of the numerous and extensive amendment being sought. In as much as the amendments are quite elaborate and extensive in outlook, I do not see how the amendment will overreach or prejudice the defence. The mere fact that it is elaborate amendment does not warrant the court prevented the claimant from bringing out all the issues for determination. In any case, the amendment being sought emanates from the contract of employment between the claimant and the defendants. In view of the reasoning stated in this ruling so far, the application of the claimant succeeds. Order as prayed, leave is hereby granted to the claimant to amend her writ of summons by adding the following reliefs. (i) Declaration that the purported termination of the claimant’s employment as contained in the letter of the second defendant dated 7/5/2010 or in any other letter at all, is incompetent of no movement, null and void (ii) Order setting aside the alleged termination of claimant’s employment as contained in the letter of the second defendant dated 7/5/2010 or in any other letter at all. (iii) Order directing the defendant to pay to the claimant forth with all arrears of her salaries, emolument and /or entitlements from the time the purported termination took effect up till the satisfaction of this court judgment. (iv) The sum of N5,000.000.00 damages Leave is also granted the claimant to amend her statement of claim as per the attached proposed amended statement of claim marked as exhibit ‘A’ Leave is further granted to the claimant to file the witness deposition of Miss Doris Ihuoma which was omitted when this suit was filed. In view of the age of this case, the claimant shall file and serve her amended process within seven days from today while the defendant shall file any consequential amendment thereafter within 14 days after the receipt of the claimants amended processes. Ruling is entered accordingly. ---------------------------- - Hon. Justice P.O Lifu JP. Judge IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT LAGOS Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge MONDAY 31st MARCH, 2014 SUIT NO: NICN/LA/235/2013 Between: Petroleum & Natural Gas Senior Staff Association of Claimant Shell Branch & Another AND Petroleum & Natural Gas Senior Staff Association of Defendant Nigeria & Others APPEARANCE O.O. Ikuesan Esq. Miss. Hold the brief of Ekarume Esq. for the claimant. Sola Iji Esq. all the defendant. RULING By a motion on Notice dated and filed on the 5th of August 2013, the applicant is seeking to be joined as the 4th defendant in this suit. The party seeking to be joined goes by the Name “Shell Branch Executive Council of Petroleum & Natural Gas Senior Staff Association”. The motion is supported by an 8 paragraph affidavit and a written address. In the said written address, the counsel to the party seeking to be joined in this suit as the 4th defendant Mr. Promise Asikpo formulated a lone issue for determination which is “whether in the circumstances of this case, the applicant is entitled to be joined as a party in this suit? In an attempt to argue the issue raised for determination, learned counsel answered the formulated issue in the affidavit by citing order 13 Rules 17 (1) and (2) of the High Court of Lagos State Civil Procedure Rules 2004 to impress upon the court that since sufficient facts have been place before the court, coupled with the vested power of the court, the party seeking to be joined as the 4th defendant should be joined since he is a necessary party, who is also interested in the matter. Counsel referred the court to the case of Fabura Vs. Minimah 2003 32 WRN at 3. Counsel further referred the court to the cases of Arokoya Vs. Fed. Mortgage Bank of Nigeria 2012 27 NLLR (Pt.76) at 105; Green Vs. Green 2001 45 WRN 90 at 109 -110 and submitted that the presence of the party seeking to be joined in this suit as the 4th defendant will avoid multiplicity or duplication of actions, prevent abuse of court process and minimize cost of litigation. The party seeking this prayer should be joined in this suit since his coming into the case will enable the court effectively, effectually and completely determine the issues in controversy between the parties. In his reaction to the application for joinder, the claimant’s solicitor Lucky Ekarume Esq. filed a 23 paragraph counter affidavit and a written address wherein he formulated three issues for determination in the joinder application (a) Whether the applicant’s application is competent going by the provision of order 11 Rule (1)(1) of the National Industrial Court Rules 2007. (b) Whether the presence of the party seeking to be joined is essential for the effectual and competent determination of a suit in respect of illegal and unlawful dissolution of an independent branch. (c) Whether this Honourable Court as a Federal Court is bound by and can rely on the Lagos State High Court (Civil Procedure) Rules to determine issues before the court (National Industrial Court). On issue one, claimant counsel contended that where the law specifically requires an act to be done within a specific period, such act must be done within the limit provided or prescribed by the Act and where this is not done, such an action done outside the prescribe statutory provision as in this motion for joinder shall be incompetent. Counsel cited the case of Sanusi Vs Ayoola 1992 9 NWLR (Pt. 265) 275 at 283. Counsel urges the court to regard the motion for joinder as incompetent since it was served nine days instead of 5 days after filing as provided by order 11 (1) (1) of the National Industrial Court Rules of 2007. On issue two, counsel submitted that the party seeking to be joined in this suit in not a necessary party as the case can be determine effectively without his presence. Moreover since there was no election for the 1st claimants Shell Branch and a mere declaration by an individual cannot amount to a dissolution of a branch executive of the 1st claimant the 2nd claimant remains in office and the party seeking to be joined becomes an impostor, busy body and a meddle some personality who is not entitled to any favourable discretion of the court. Counsel contended further that since the applicant is not the President or Secretary General of the 1st claimant who is being accused of breaching section 33.3 of the claimants constitution this suit can be determine without her presence as the claimant cannot be compelled to proceed against any person whom he does not want to sue. Counsel call in aid the case of Green Vs Green 1987 3 NWLR (Pt. 61) 480. Counsel urged the court not to duplicate the 1st claimant as the 4th defendant as the 1st claimant is the Shell branch of the Petroleum and National Gas Senior Staff Association. On issue three, counsel submitted that a court is only bound by its own rules and not the rules of another court. Counsels call in aid the case of NIPOL Ltd Vs. Boku Investment and Property Co. Ltd 1992 3 NWLR (Pt. 232), 727 Sc. It is the further submission of counsel that using the Lagos High Court Civil Procedure Rules as in this instant on this application for joinder by the applicant makes it incompetent, mischievous and lacking in substance and should be dismissed with substantial cost. On reply on point of law the applicant counsel, Mr Promise Asikpo referred the court to the further affidavit of 13 paragraph and a written address dated the 30th of August 2013. In the said written address, counsel urged the court to strike out paragraph 21 of the 2nd claimants counter affidavit dated 20th August 2013 for offending section 115 (2) of the Evidence Act 2011 as the paragraph contains legal argument, conclusion, prayers and objection. Counsel call in aid the case of Izedonwen Vs. UBN Plc 2012 6 NWLR (Pt. 1295) 1 . On issue one raised and argued by Mr. Ekarume, Counsel to the claimant, Mr. Asikpo submitted that it was the duty of the court to serve processes of court and not the applicant. In fact, counsel argued that the duty of applicant stops where he filed and pays the necessary fees as may be assessed by the Registry of the court as the fault of the registry cannot be visited on the right of the litigant. He cited the case of Adebayo Vs. TSG (Nig) Ltd 2011 4 NWLR Pt. 1238 CA 493 at 507. Counsel further contended that since the claimant has not suffered anything by the service on him of this application for joinder 9 days instead of 5 days required by the rules of this court, the court should hold that there is nothing incompetent about this motion for joinder in the interest of justice. On issue two canvassed by the claimant counsel, it is the reply of the applicant counsel that the party seeking to be joined is the only authentic person that can legally append the name - Shell Branch, Executive Counsel of PENGASSAN and as such the body cannot stand back and allow the claimant to parade its name and position illegally. Counsel to the applicant contended further that the applicant being a necessary party should be joined to enable the court effectively and completely adjudicate upon and settle all the questions involved in the cause or matter as was decided by this court in the case of Akinyinka and Another Vs. Moretime Co2 Gas Plant Ltd 2010 18 NLLR Pt. 50 242 at 268. Furthermore the applicant counsel argued that the mistake of counsel in respect of the deposition to the effect that applicant was brought to position as chairman of executive counsel of 1st claimant Shell Branch on the 9th May 2012 mistead of 11th August 2012 should not be visited against the litigant i.e the applicant. Counsel contended that the merit of the applicant’s case should not be considered at this stage but at the substantive stage of trial when and after the joiner is allowed and all issues joined by the parties as the court can also Suo motu order joinder of parties if the court discovers a necessary party. In reply to issue three canvassed by the claimant counsel Mr. Asikpo submitted that order 15 of the National Industrial Court Rules 2007 provides for the importation of the rules of other court in interpreting and applying provisions that are not contained in the rules of this court; such lacunae counsel submitted can only be filled by reference to the rules of other courts in the interest of justice. Counsel referred to this court decision in the case of Asinobi and Another Vs. Nigeman Beweries Plc 2010 20 NLLR (Pt. 57) 433 at 450 where section 37 (3) of the Trade Dispute Act Cap T8 2004 LFN, Section 12 of the National Industrial Court (NIC) Act 2006 and section 14 of National Industrial Court (NIC) Act 2006 were applied and urged the court to be persuaded accordingly. Counsel finally urged the court to grant the applicant’s prayers. Mr. Sola Iji, the defendants counsel, did not oppose the application for joinder and consequently did not file any process in response to the joinder application. I have carefully gone through the application for joinder, the various affidavits and written addresses and the authorities cited by the counsel in support of their respective positions. In determing this application, I hereby formulate the following lone question. “under what circumstance can a joinder of party be made under our jurisprudence given the facts as presented in this suit?” Joinder of parties is covered by procedural or practice rules and under the inherent powers of the court to do justice. It is not a substantive law issue per se. This issue is not expressively provided for in the National Industrial Court Rules of 2006 and in this circumstance, the rule of this court expressly gives a wide discretion to the court as follows; Order 15 “where no provision is made in these rules as to practice and procedure or where the provisions are inadequate, the court may adopt such procedure as will in its view do substantial justice to the parties”. Apart from the above quoted portions of the rules of this court the judge is not left in the dark as to what should be operating at the back of his minds in considering this type of application where there is a perceived lacunae as to the express provisions of the rules on a particular subject matter. Section 14 of the National Industrial Court (NIC) Act 2006 has this to say: “ the court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter have power to grant, either absolutely or on such terms and conditions as the court think just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that as far as possible, all matters in dispute between the parties may, be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided”. A carful look at this section of the National Industrial Court (NIC) Act 2006 accommodates and underscores the principles guiding joinder of parties in an action. This section talks about avoiding multiplicity of actions and settling all matter in dispute between the parties completely and finally. In the case of Awoniyi Vs. Amore 2000 10 NWLR (Pt. 676) 522 at 540, the Supreme Court held that the purpose of joinder of parties in an action is to enable the court to effectively and completely adjudicate upon and settle all questions involve in the cause or matter. This is so because, it is a fundamental principle that a judgment in per sonam is only binding on the parties to the list. Consequently all parties who may be affected by the result of the litigation may be joined either as plaintiff or defendant. See also the case of Jimoh Vs. Oyinloye 2006 15 NWLR (Pt. 1002) 392. Justice Niki Tobi (JSC RTD) In the case of Ogolo Vs. Fabura 2003 11 NWLR (Pt. 831) 231 Narrowed the essence of joinder of parties to a suit to three issues or principles (a) To avoid abuse in the litigation process (b) To save litigation time in the judicial process and (c) To avoid multiplicity or duplication of actions. As a corollary to the above, the courts have laid down a time tested principles governing this subject matter. These principles can be stated as follows. (1) Is the cause or matter liable to be defeated by the non joinder? (2) Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as a defendant? (3) Is the third party a person who ought to have been joined as a defendant? (4) Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the case or matter? See the case of Adepiti Vs. Govt. Ondo State 2012 LPELR 19684; Adefarasin Vs. Dayekl and Another 2011 11 NWLR Pt. 1044 89 at 36 Ugorji Vs. Onwu 1991 3 NWLR Pt. 178 177. Furthermore, it is trite law that all parties or persons who may be affected by the outcome of the action are necessary parties and ought to be joined. Against all the principle above as a background, let me now proceed to look into the present application Paragraphs 4 (all sub- paragraphs inclusive) of the applicants supporting affidavit reads. ‘4’ Comrade Sarah Ajose-Adeogun (the chairman of the applicant) informed me in our office on the 29th day of November 2012 at about 3pm and I verily believe her as follows: (a) She is the current chairman of the branch executive council of the 1st claimant (b) She was elected on the 9th of May 2012 following the dissolution of `the erstwhile executive of the 1st claimant led by Comrade Tonie Oko Lolo- Ideh (the 2nd claimant) (c) Since 11th August 2012, she has presided over the officers of the 1st claimant. (d) Neither the 1st claimant nor the branch executive council of the 1st claimant at all times to the institution of this action on 9th May 2013 has authorized the 2nd claimant to institute this action on their behalf. (e) The 2nd claimant does not represent the 1st claimant in any way on all the issues constituted in this suit. (f) The claimant has denied and joined issues on all these depositions in their counter affidavit. It must be noted that exhibit TO2 attached to the claimants counter affidavit has comrade Babatunde Ogun as PENGASSAN president while Comrade Bayo Olowoshile is the PENGASSAN General Secretary. In the further affidavit of the applicant exhibit PN 7 has Comrade Babatunde Ogun as president who allegedly dissolved the shell branch executive and compose a branch caretaker committee while comrade Bayo Olowoshile the general secretary of PENGASSAN wrote exhibit PN 8 containing names of Shell Branch Caretaker Committee of PENGASSAN. It is also worthy to observe that the send Comrade Bayo Olowoshile the General Secretary of the 1st claimant also signed exhibit PN 10 attached to the applicants further affidavit wherein the Shell Branch Caretaker Committee member of Pengassan chaired By Comrade Sarah Ajose Adeogun was constituted and communicated to hold office from August 11 2012 to August 10 2015. It can be seen clearly in the above facts that the 1st and 2nd defendants and indeed the 1st claimants has successfully made the applicant a necessary, proper and desireable party through exhibit TOS, exhibits PN 7 and PN 8 and particularly PN 10 It is also very clear from the circumstances and facts analyzed above that the party seeking to be joined and the second claimant are disputants each claiming to be in control of the soul of the 1st claimant. This controversy to my mind can only be resolved if the two disputants are present as parties in this suit. Moreover, will the party seeking to be joined be bound by the decision in this suit if she is not joined? The answer to this question obviously will determine the justice of this joinder application. Furthermore, who is the current chairman of the executive council of the 1st claimant? I think, in my humble view, the joining of the applicant as the 4th defendant in this case will go a long way to answer some of these questions and effectively and effectually settle all the issues in controversy in this suit as the claim of the claimant and that of the applicant raises some common questions of law and facts. Muktar JSC held in the case of Ibigbami Vs. Military Govt. Ekiti State 2004 4 NWLR (Pt. 862) 343 as follows: Joinder of parties, whether as plaintiff or defendant is subject to two conditions: (a) The right to relief must in each case be in respect of or arising out of the same transaction or series of transactions. (b) There must be some common question of law and fact. The issues in this case arises out of the same transaction involving common questions of law and facts deduceable from the constitution and the running and management of Petroleum and Natural Gas Senior staff Association of Nigeria (PENGASSAN) with particular attention to shell branch of the Association. I hold that the applicant is a necessary party. Consequently the application has merit and it succeeds. Accordingly leave is hereby granted to the applicant to join this suit as the 4th defendant. All processes filed in this suit are to be served on the 4th defendant by the claimant within seven days from today while the 4th defendant is to file its defence within seven days thereafter. All other response shall be filed and exchanged fourteen days after the filing and service of the 4th defendants processes. This case shall proceed to trial on the next date of adjournment. I make no order as to cost. Hon. Justice P.O Lifu (JP.) Judge