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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 13TH OCTOBER, 2014 Suit No. NIC/ABJ/330/2012 BETWEEN NATIONAL UNION OF HOTELS & CLAIMANT PERSONAL SERVICES AND 1. AREWA HOTELS (DEVELOPMENT) LTD 2. NEW NIGERIA DEVELOPMENT COMPANY DEFENDANTS LIMITED 3. NIGERIA NATIONAL PETROLEUM CORPORATION REPRESENTATION Lucky C. Dureke Esq for the Claimant. Onyekachi Umah Esq for the Party sought to be joined. RULING This is a Motion on Notice brought by the Claimant/Applicant praying for the following:- 1. Order of the Honourable Court joining the Nigeria National Petroleum Corporation as the 3rd defendant in the instant Suit No: NICN/EN/330/2012 National Union of Hotels and Personal Services Workers V Arewa Hotels (Dev) Ltd & Anor. 2. And for Such Further Order or Other Orders as this Honourable Court may deem fit to make in the interest of justice and fair hearing. The grounds for the application are predicated on:- a. The party sought to be joined as the 3rd defendant in the suit is a necessary party. b. It is important to hear from NNPC in the matter. c. In the interest of justice. The Motion is supported by 23 paragraphs affidavit deposed to by Comrade Augustine Mbavough the General Secretary of the claimant. Also attached is a written address in support of the Motion on Notice. In reaction the defendants/respondents filed a counter affidavit of 20 paragraphs sworn to by Onyekachi Umah the counsel to the defendant/respondents in opposition to the claimant’s Motion on Notice. In compliance with the Rules of the court the defendant also filed a written addresses in support of the counter-affidavit. In the written address of the claimant/applicant a sole issue is raised for the determination of the court to wit:- Whether in the circumstances of this case, it is necessary to join the party sought to be joined as the 3rd defendant in the suit? The Applicant argued that by the peculiar facts and circumstances of the instant matter, it is necessary to join the party sought to be joined. Applicants referred to paragraphs 13 – 17 of the affidavit in support of the Motion on Notice for joinder and contended that the suit will not be effectually and completely determined except the party sough to joined, NNPC is joined in the suit. The Applicant submitted further that the statement of fact contains facts and claims that made the party to be joined as a necessary party. That the application is to ensure that all the party involved in the employment process of the workers are before the court and heard on the issue. The claimant merely seeks to obtain the sums owed the workers in the contract and to preserve the right of all persons or parties in the transaction to fair hearing, when there are material allegations of facts and claims against the NNPC which requires them to be heard by the court. Claimant submitted that it is crystal clear from the affidavit in support of the Motion on Notice and the existing statement of facts in the suit that the claimant has made out legal claims against the parties sought to be joined which requires to be heard by the court. That whether the claim is weak at this stage is immaterial. The Applicant contended further that it is to avoid multiplicity of actions as it would amount to waste of juristic time and ink to bringing separate actions when the parties in the transaction are the same and so, also are the facts. Relying on the cases of Chief Paul Fubara & Ors V Raymond Ogolo & Ors. (2003) 32 WRN 1 at 33 and Green V Green (1987) 3 NWLR (Pt. 61) AT 480. The claimant further submitted that it has complied with the condition precedent to bring the NNPC before the court. The claiamnt referred to the Pre-action Notice dated 28th November, 2013 and also the courier receipt of its delivery to the NNPC. This is a proof of compliance with the provisions of NNPC Act. It further argued that the Act did not provide that NNPC cannot be joined in a suit. That NNPC Act is not an engine of fraud to shield the Corporation from legislation litigation. That there is no decision that a party cannot be joined after an action has been commenced Marc Ukaegbu & Ors V Mark Nwokolo (2009) All FWLR (Pt. 466) 2852 at 1883. To the applicant the claimant he has disclosed a legitimate and genuine complaint or grievance against the parties sought to be joined which ought to be protected. Claimant further emphasized that there is no statute or case law that says that NNPC cannot be joined in a pending suit. It is important to state that the service of a pre-action notice can be waived by the NNPC referring the court to the case of Filed & Food Farms Nig Ltd V Nigerian National Petroleum Corporation (2009) 37 WRN 1 at 14 where the Supreme Court held:- The right to be served with a pre-action notice does not fall within the category of rights which cannot be waived. The issue of what happens when a pre-action notice was not served before an action is commenced received the attention of the Supreme Court in the case of Chief Berthrand Nnonye V D. N. Anyichie & Ors (2005) 8 WRN 1 @ 22, wherein Akintan, JSC in the lead judgment held as follows:- In order words, non-service of a pre- action notice merely put the jurisdiction of a court on hold pending compliance with the pre – action. That the ‘non- service of a pre- action notice merely puts the jurisdiction of a court on hold pending compliance’ is to the effect that an action put on hold that that is the situation in this matter. The claimant said it withdrew against the NNPC to enable it issue the required pre-action notice. Now that the NNPC has been issued with and served the required pre-action notice under the law, the NNPC cannot turn round to argue that it cannot be joined. As the law has been compiled with, the NNPC can be made part of the case by this Honourable Court. Claimant reiterated that the NNPC Act does not provide against joinder of the Corporation in an action. So, what is important is compliance with the service of the pre-action notice. To contend that the NNPC cannot be joined because it is a pending suit is not part of the NNPC Act or does not accord with justice. Claimant submitted here that a live issue should not be sacrificed on the altar of technicalities. It has been held by the Appellate Courts in the country that the days of technical justice are over and that the present trend is for Courts to do substantial justice. In Mattew Obapolor V The State (1991) 1 SCNJ 91 @ 103 Akpata, JSC (as he then was) intoned as follows:- It is the paramount duty of courts to do justice and not to cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions or technicalities inherent in rules of court. The Supreme Court in Labode V Otubu at page 27, per Onu, JSC stated as follows:- The court enjoined courts to eschew reliance on technicalities in determination of disputes and to rely on the substance of an action rather than former as the predominant consideration. In Rotimi Amaerchi V Independent National Electoral Commission & Ors (2008) 10 WRN 1 at 124, Oguntade JSC (as he then was) stated as follows:- All courts in Nigeria have a duty which flows from a power granted by the Constitution of Nigeria to ensure that citizens of Nigeria, high and low, get justice which their case deserves. The pre-action notice on the NNPC was served more than one month before the claimant’s application for joinder. So, the issue of the claimant’s application being premature does not arise. The decisions in SLB Consortium Ltd V NNPC (2011) 9 NWLR (Pt. 1252) and Mark V Eke (2004) 5 NWLR (Pt. 856) do not apply by the peculiar facts and circumstances of the matter. In conclusion he argued that this is a proper case for this Honourable Court to exercise its discretionary power by joining the party sought to be joined. Claimant said that there is merit in the application. Next, the party sought to be joined will not be prejudiced in any way or manner by an order of joinder as it has opportunity to make its case. Instead, a refusal of the instant application will work untold injustice and severe hardship on the union. It is better and safer and in the course of trial the court will ascertain the liabilities of the parties, and accordingly determined. He urged the Honourable Court to grant the Motion. The party sought to be joined NNPC filed a 22 paragraphs counter-affidavit sworn to by Onyekachi Umah, a legal practitioner in the Chambers of Messrs LC & N, legal Practitioners (Solicitors & Advocates) to the NNPC. A written address in support of counter-affidavit was also filed wherein a sole issue which is:- Whether the circumstances of this case the Nigerian National Petroleum Corporation should be joined as a defendant in this suit? Commencing his argument the learned counsel said that even if the Corporation is to be joined as a defendant the Motion paper upon which the claimant/applicant stated its prayers is not signed. That signing of documents especially court processes by counsel or party is fundamental. Relying on the Supreme Court case of Chukwuka Ogudo V The State (2011) 18 NWLR (Pt. 1278) the court held:- An unsigned document is worthless. That the Supreme Court held in the case of S.L.B Consortium Ltd V NNPC (2011) 9 NWLR (Pt. 1252) where the court described how court processes filed in court are to be signed:- First, The signature of counsel, which may be any contraption Secondly, the name of the counsel clearly written and Thirdly, who counsel represents and Fourthly, name and address of legal firm. The learned counsel then said that unsigned motion or notice of the claimant/applicant are worthless, useless, invalid, null, void and of no legal effect. That the claimant having filed and served and unsigned motion paper has filed no motion in law and principle before this court. The learned counsel further argued that the claimant has not shown proof of service of a pre-action notice to base its application. That the copy of the pre-action notice attached to the affidavit of the claimant as Exhibit B is not an acknowledge copy showing delivery to NNPC. Furthermore, the airway bill by certain EPS Courier attached to the affidavit as Exhibit C as no proof of delivery, the name of the recipient, date, signed and time are not provided. It is clear that the claimant has failed to proof service of a pre-action notice on NNPC being a condition precedent for commencement of action. The learned counsel also said that it is trite law that a party to be made a defendant in a civil suit the claimant must have a claim against him. He referred to the case of Adigun V Governor of Osun State (1995) 3 SCNJ 1 at 4. That the claimant has failed to make any claim against NNPC. He contended further that the Corporation has ever employed or paid the salaries of the members of the claimant /applicant rather engaged the 1st defendant (Independent Contractor) to do among other things. The business relationship of the Corporation and 1st defendant is encapsulated in their sealed agreement of 31st December, 2002. That the claimant/applicant and members of the claimant/applicant are not parties to the agreement. There is a common law principle that a stranger to a contract can neither sue or be sued on it even if the contract is made for its benefit. That consequently the claimant has no business whatsoever to discuss, argue, enforce, seek or rely on the agreement between the Corporation and the 1st defendant by joining the defendant in the suit. That the generation of money and general business in the NTI Conference Center is an exclusive matter in the agreement of the Corporation and 1st defendant to the exclusion of all others. The counsel submitted that it is absurd the claim that the Corporation is a necessary/proper party in the suit when there is no claim against it and it will not be needed for the effectual and complete determination of this suit. That consequently, upon the above foregoing, the court should strike out the motion of claimant/applicant or dismiss their prayer. Having carefully read the submissions of parties and the cases cited in this suit, the issue for the court to determine are:- 1. Whether the claimant’s Motion on Notice was not signed. 2. Whether the party sought to be joined was served pre-action by the applicant before the claimant served the court process on NNPC. 3. Whether the party sought to be joined as the 3rd defendant NNPC is a proper party to this suit. On the 1st the issue whether the claimant’s motion on notice was signed. The party sought to be joined had argued that they were served on the 15th September, 2014 and unsigned motion paper by the claimant/applicant. That this is the second time the claimant served them with an unsigned motion paper. That consequent upon this that there is nothing that be based or gotten from it and therefore there is no motion paper in law before the court. The claimant/applicant in reaction to this statement submitted that it is the court’s copy that should be looked at to determine whether the motion paper was signed or not. The counsel argued that his file copies were signed and it is unfortunate if the copies given to the counsel were unsigned. Upon these submissions the court observed that all the processes filed by the applicant in relations to the case and copies found in the court file were all signed. It follows therefore, that the court will take it that processes filed by the claimant were signed, it is unfortunate if copies given to the counsel were unsigned. It is the court order therefore that the court clerk or the claimant counsel should endeavour to serve the counsel with a signed copy of the motion paper. The 2nd issue for the court to look at is whether the party sought to be joined was served with a pre-action notice by the claimant/applicant before being served with court processes. A pre-action notice connotes some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract which requires compliance by the person who is under legal duty to put on notice the person to be notified before the commencement of any legal action against such a person. The effect of non compliance with the service of pre-action notice amounts to an irregularity. Non service of a pre-action holds the suit pending compliance with the pre-conditions. The rational behind the pre-action notice is to enable the defendant know in advance the anticipated action and for a possible amicable settlement of the matter between the parties without recourse to the adjudication by the court. The NNPC is now aware of the case and has entered appearance in this matter. If a defendant raises it, it becomes a condition precedent which must be met before the court could exercise its jurisdiction. The question that should be asked is whether the claimant has complied with the legal requirement as required was stipulated by the NNPC Act by issuing a pre-action notice to NNPC? A pre-action notice is usually inform of a letter written by the claimant or its Solicitor to the prospective defendant giving him notice of his intention to institute legal proceedings for specified reliefs. The contention of the counsel to NNPC is that the claimant has failed to comply with the pre-condition before filing the suit. But contrary to the assertion to the counsel to the NNPC that a pre-action notice was not served on NNPC, a careful perusal of the document in the court’s file Exhibit A, attached to the further and better affidavit by the claimant dated 10th June, 2014 showed that a letter of notice of intention to sue dated 28th November, 2013 was addressed to NNPC the party sought to be joined in the suit, Exhibit B is also the airway bill issued by EPS Courier addressed to the Managing Director of NNPC dated 7th December, 2013 used by the claimant/applicant in transporting the said pre-action notice. In my view, the claimant has complied with the legal requirement as stipulated in the NNPC Act on pre-action notice. All the arguments of the counsel for the party sought to be joined go to no issue. This issue is resolved in favour of the applicant. Finally, the last issue to be determined by the court is whether the party sought to be joined NNPC is a necessary party. Necessary party is someone whose presence is a necessary party. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled must be question in an action which cannot be effectually and completely settled unless he is a party to the suit. Applying this principle to the present case, it is my view, that it would not be an abuse of court process to join NNPC in this suit. From claims and facts of this case this matter cannot be settled without NNPC being joined as a party. The NNPC must assist the court in clearing certain issues which cannot be resolved without the organization being joined as a party. It is therefore, the court order that NNPC be joined as a 3rd party in this suit. For reasons given above, the application of the claimant is granted with the leave to join NNPC as a party in this suit. Ruling is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE