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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: March 03, 2015 SUIT NO. NICN/OW/16/2013 Between 1. The Registered Trustees of Tri-Cycle Owners/Riders Association, Abia State 2. Mr. Emmanuel Idume 3. Mr. Alexander Oliver Claimants/Respondents 4. Mazi Abel Kalu 5. Mr. Ndubuisi Okoro (For themselves and as representing the Tri-Cycle Owners/Riders Association Abia State (TORA) Excluding The Defendants) And 1. Chief Ambrose Chibuzor Omeonu 2. Mr. Anthony Okwu Defendants/Respondents 3. Benjamin Nzenwata 4. Mr. Nkemjika Kelechi 5. Mr. Wilson Okoronkwo Proposed Defendants/Applicants 6. Mr. Nkejimka Nneji 7. Mr. Chikezie Arungwa. Representation C. O. Azubuike for the Claimants J. O Agwu for the Defendants RULING By a motion on notice dated the 23rd day of September 2014 and filed on the 25th day of September 2014, the applicants herein seek the leave of court to bring this application. They also seek an order of this court to join the applicants as the 4th, 5th, 6th and 7th defendants respectively in this suit, being necessary parties therein. This motion, which is brought pursuant to Order 11 Rules 1, of the National Industrial Court Rules 2007 and under the inherent jurisdiction of this Honourable court, is supported by an eleven paragraph affidavit deposed to by Mr. Nkemji Kelechi the proposed 4th Defendant/Applicant, for himself and on behalf of the other proposed defendants/applicants. Counsel placed reliance on all the paragraphs of the affidavit and submitted that the facts contained in the said affidavit warrants the court to exercise its discretion in granting the application in favour of the applicants. Counsel submitted further that the law is trite that where the outcome of a legal proceeding/judgment in a matter will be binding on a person, it would only be proper to join the person in the matter as a necessary party in the interest of justice. He referred the court to the case of ADISA vs. OYINWOLA (2000) 6 S.C. (PT. 11) Pg. 47; UKU vs. OKUMBAGBA & OTHERS (1974) 3 S.C. PG. 35. According to counsel, in the instant case, the applicants are trustees and/or executive members of Tri-cycle owners/riders Association, and by virtue of that fact, they are necessary parties to this suit. If therefore the applicants are not joined, in the event that the claimants’ suit succeeds, the applicants’ status in the union would be jeopardized. Counsel urged the court to grant this application in the interest of justice. In opposition to the application, the Claimants on the 21st day of October 2014, filed a counter-affidavit of 7 paragraphs deposed to by one Mr. Emmanuel Ndume, upon which counsel placed reliance. In the written address accompanying the counter-affidavit, counsel submitted that the claimants sued the 1st, 2nd and 3rd defendants as incorporated in the reliefs sought in this suit for corrupt practices, highhandedness and sit-tight antecedents. Pleadings have been duly exchanged and hearing had commenced before this application. The applicants for joinder are all Civil Servants of Abia State Ministry of Science and Technology, Umuahia. According to counsel for the Claimants, the Civil Service Rules cannot be changed in respect of the membership of unions including the Tri-Cycle Owners/Riders Association (TORA) as in the instant case. Counsel submitted that the 1st to the 3rd defendants did not obtain the leave of Court before making the application for joinder of the proposed 4th to the 7th respondents/applicants sought to be joined as defendants. He went further that the 1st Defendant in Suit HU/40M/2012 which is attached for the Claimants’ defence did not include the names of the 4th to 7th Respondents as Applicants but as respondents. Counsel pointed out that the chequered episode of the 1st Defendant’s grand designs from the High Court of Justice Umuahia unto this Court is worthy of note. Counsel for the Claimant submitted that the 4th, 5th, 6th and 7th Defendants/Applicant as sought for joinder are not necessary parties. It is therefore expedient to state who is a necessary party and determine the need to join him as a legal person. He submitted that a necessary party must be one whose presence is necessary for the effectual and complete determination of the suit. According to Counsel, the claim of the claimants against the 1st, 2nd and 3rd Defendants is on personal capacities and not on representative capacities so as to entitle persons who claim to be trustees to be joined in a matter where no claims are made by the claimants against them. Counsel stated that the court will not generally compel a plaintiff to proceed against a party whom he has no desire to prosecute unless: (i) Where a very strong case is made out, showing that in the particular case justice cannot be done and the case cannot be properly determined without the new Defendant being brought in; or (ii) When the Plaintiff’s case or the existing Defendants’ case cannot be very effectually and completely determined without the joinder. It presupposes therefore that joinder is not made for fun and or as a legal jamboree but must be rooted and as sine qua non. See Mbanefor v. Molokwu (2014) 2 SCNJ 581; See also Ige v. Farinde (1994) 7 NWLR (pt. 354) 42 P. 606. Counsel urged the court to refuse the application for joinder as it is ill conceived, mischievous and overreaching the adverse interest. I have carefully considered the averments, depositions and arguments for and against the grant of this application. The applicants in the instant application are MR. NKEMJIKA KELECHI, MR. WILSON OKORONKWO, MR. NKEMJIKA NNEJI and MR. CHIKEZIE ARUNGWA. They seek to join this suit as the 4th, 5th, 6th and 7th defendants respectively. Their reason for seeking to be joined is as contained in the affidavit of the proposed 4th defendant/applicant filed in support of the motion. It is deposed that the applicants are Trustees of Tri-cycle Owners/Riders Association, Abia State (TORA) but the consent of all the Trustees was neither sought nor obtained before the institution of this matter. After becoming aware of this suit in February 2014, they tried to settle the dispute but it failed. Having studied the facts of the claimants’ claims, the applicants intend to contest the facts and since they are the Trustees of TORA, it is necessary that they are joined in the suit as the second set of defendants as the outcome of the suit will affect their status in the association. On their part, the claimants/respondents vehemently opposed the application for the joinder of the applicants to this suit. In their counter affidavit deposed to by the 2nd claimant/respondent, the claimants challenged the application and virtually denied all the facts deposed to by the applicants in support of the application. Generally, whether to join a party to a suit or not is within the discretion of the court. The discretion is however to be exercised judicially and judiciously. In addition, the court hearing an application for joinder must be very cautious and circumspect in making the order. See LEAD MERCHANT BANK LTD vs. SALAMI (2008) All FWLR (Pt. 404) 1587 at 1600. What guides the court in the exercise of its discretion is whether the parties seeking to be joined have a direct or legal interest in the subject matter of the action in order to take advantage of the discretion of the court. In their application, the applicants have stated that they are necessary parties to the suit as the outcome of the suit will affect their status in the association. It is settled that all those who claim some share or interest in the subject matter of the suit or who may be affected by the result are necessary parties for their presence before the court may be necessary in order to enable the court completely settle all the questions and issues involved in the controversy. See LEAD MERCHANT BANK LTD vs. SALAMI at 1598. The applicants may have shown that they are necessary parties to this suit but in the circumstances of this case, the question is: “can the applicants be joined in this suit as defendants?” In paragraph 3 and 7 of the affidavit in support of the application, the applicants described themselves as the Trustees of the Tri-cycle Owners/Drivers Association Abia State. The 1st claimant in this suit is the Registered Trustees of TORA and the capacity of the 2nd to 5th defendants is stated on the compliant as representing the Tri-cycle Owners/Drivers Association Abia State. In paragraph 1 of the statement of fact, the claimants averred that “The claimants are the bonafide trustees of and members of Tri-cycle Owners/Riders Association, Abia State (TORA) excluding the defendants.” In paragraph 9, the claimants also averred that “The claimants aver that their union, the Tri-cycle Owners/Riders Association, Abia State is duly registered and incorporated under the Corporate Affairs Commission on the 11th day of October 2011. The Certificate of Incorporation is hereby pleaded …” The claimants also front loaded a copy of the Certificate of Incorporation of the Association. I have looked at the Certificate and it think it is necessary to quote the relevant content of the Certificate’ “CERTIFICATE OF INCORPORATION of the incorporated Trustees of TRY-CYCLE OWNERS/RIDERS ASSOCIATION ABIA STATE I hereby certify that CHIEF AMBROSE UMEONU, JUNIOR ABEL, SOROMTOCHUKWU EMMANUEL, CHIKEZIE ARUNGWA, SOLOMON NDUBUISI, ALEXANDER OLUA, NKEMJIKA KELECHI, WILSON OKORONKWO, NNEJI NKEMJIKA The duly appointed Trustees of Tri-cycle Owners/Riders Association, Abia State have this day been registered as a corporate body…” By the act of incorporation, all of the persons who were so registered as the Trustees of TORA have become the body and spirit of the association. They have become a corporation aggregate, that is, a collection of individuals united into one body having perpetual succession under an artificial form and vested by the policy of the law with the capacity of acting in several aspects as an individual and of suing and being sued collectively in the registered name. See ONUEKWUSI vs. REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH (2011) All FWLR (Pt. 573) 1923 at 1942. The 4th, 7th, 8th and 9th trustees on the Certificate of Incorporation are the applicants in this application. They now want to join as defendants. The question is: Are they not already parties to this suit as the 1st claimant? The answer, in law, is that they are the 1st claimant in this case. They cannot therefore be the claimant and the defendant in the same suit. Being the body which is the 1st claimant in this suit, it is my view that the applicants cannot also be joined as defendants in this suit even though this time in their personal names but still in their capacity trustees of TORA. I find support in this view on the Supreme Court judgment in OKEAHIALAM vs. NWAMARA (2003) 7 S.C. 145 at 152 where it was held that the same person cannot be both a plaintiff and a defendant in the same action. In EJEZIE vs. ANUWU (2008) All FWLR (Pt. 422) 1005 at 1028, the principle was succinctly put this way by Oguntade JSC (as he then was)- “It is also the law that no person can in the same suit be both plaintiff and the defendant even in different capacities.” The applicants are the 1st claimant in this suit. I see no merit in their application to be made defendants in the same suit. I am not unmindful of the deposition in paragraph 4 of the affidavit in support of the application that the consent of the Trustees of the Association was not obtained before this suit was instituted. If that is their case, the proper step for them to take is not to apply to be joined in the suit in another capacity. This application fails completely and it is accordingly dismissed. The Claimants having closed their case, the case will now proceed to defence. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge