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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: April 21, 2015 SUIT NO. NICN/OW/54/2014 Between 1. Mr. Michael Akoreh 2. Mr. Daramola Adebola Sunny 3. Mr. Clement Agadagba 4. Nwokedi Chinwe Claimants/Respondents 5. Anwana Mary 6. Mr. Okey Dennis 7. Nwabueze Nonye And Oluseye Opasanya, SAN (Receiver/Manager LONESTAR DRILLING Defendant/Applicant NIG. LTD. in Receivership Representation Yemi George Ojo Esq., with him, O. O. Akinyemi Esq. for the Claimants/Respondent. Emeka Nwangwu Esq., with him, C. C. Uchechukwu (Mrs.), E. C. Onwumere and R. A. Mba Esq., for the Defendant/Applicant RULING The Claimants took out a Complaint against the Defendant on the 3rd day of June 2014 wherein they claim the following reliefs: (a) The sum of N21,962,007.00 (Twenty One Million, Nine Hundred and Sixty Two Thousand and Seven Naira) and US $25,475.00 being unpaid salaries, actual debts, allowances and salaries in lieu of notice of termination owed the claimants by the Defendant. (b) Interest on the said sum of N21,962,007.00 and US $25,475.00 at the rate of 18% per year from April, 2013 till judgment is delivered and thereafter at 10% interest per annum till the judgment sums are fully liquidated. (c) N5,000,000.00 (Five Million Naira) only being the professional fees paid to the lawyer for the prosecution of this matter. By a motion on notice brought pursuant to Order 3 Rule 1, 2, 4 and 7 of the National Industrial Court Rules 2007, Section 254 1(C) of the 1999 Constitution as amended, and under the inherent powers of this Court, the defendant prays the court for an order striking out this suit as incompetent for misjoinder of parties and causes of action. The grounds upon which the application is made are as follows: (a) This action bothers on a joint suit of several employees whose date of employment and contract with the Defendant are distinct and separate. (b) Several contracts of service entered by the defendant with the claimants in different capacities. (c) Contract of employment is personal and/or domestic to each of the claimants and in event of breach, the claimants have individual rights not a collective right to sue or be represented in a suit. (d) The rules of this court do not envisage a joint suit by the claimants over different causes of action. (e) Defendant on record is not a necessary party to this suit. The claimants sued the Receiver/Manager Mr. OPASANYA, SAN in his personal capacity (albeit as Receiver/Manager). The action can only be maintained as one against LONESTAR DRILLING (NIG.) LTD in Receivership. (f) The 2nd, 3rd, 5th and 6th claimant has an ARBITRATION CLAUSE in his employment contract, disputes arising therein must first be referred to and settled in accordance with the Arbitration and Conciliation Act of Nigeria. This Honourable Court does not have jurisdiction to entertain the claim of the 2nd claimant. The application is supported by an affidavit of 5 paragraphs deposed to by one Emeka Ijezie, upon which counsel placed reliance. In the accompanying written address, Counsel pointed out that it is clear from the statement of claim and Writ of Summons that, this suit was brought jointly by the claimants seeking the same reliefs from different contracts of service entered differently in different capacities and in circumstances that are varied and different. The applicant raised the following two (2) issues for the determination of the court: (a) Whether the claimants’ suit is incompetent i.e. the competence of several employees whose date of employment and circumstances are distinct and separate maintaining one action against the defendant on record in this suit. (b) Whether the claimants can maintain this action brought against the defendant in his personal capacity as Receiver/Manager of Lonestar Drilling Company Limited. In arguing issue one, it is the submission of counsel that the claimants who contracted individually with the Defendant company, at different times (date) different capacities, different terms and conditions of service cannot collectively sue the defendant in one suit. See AMACHREE vs. NEWINGTON (1952) 14 WACA 97. The law of misjoinder of parties or causes of action applies both in contract as in the present case and even in tort. In SMURTH WAITE & ORS vs. HANNAY (1894) AC 494, the House of Lords held “that the several Plaintiffs who claimed to have shipped cargo in a general ship under similar bills of lading could not join in one action because each of them had a distinct and separate cause of action”. Counsel submitted that the claimants contracted individually with the Defendant under different terms and conditions of service, and are now suing together, and the reliefs contain a lump sum of money. It is not the law in Nigeria as in England where the above case was decided. In CARTER vs. RUGBY & CO. (1896) 2 QB.113, a number of miners had been drowned through the flooding of a mine. The personal representatives of the deceased miners in one action against the proprietors of the mine claimed that the mine had been flooded through negligence for which they (the proprietors) were responsible. It was held that the Plaintiffs could not join in one action against the defendant. In CO-OPERATIVE & COMMERCE BANK (NIG.) PLC vs. MRS. AMADI ROSE & 3 ORS (for themselves and on behalf of other 11 employees of the defendant retired or retrenched by the defendant) (1998) 4 NWLR (PT. 544) 37 @ P. 45 para B., UBAEZONU J.C.A. (as he then was) held inter alia “I say without equivocation that there can be no better example of misjoinder of parties and causes of action as is presented in this case.” In the same case of C & C BANK (NIG.) PLC vs. MRS. AMADI ROSE & 3 ORS at page 50, His Lordship NIKI TOBI J.C.A. (as he then was) held inter alia “In the realm of master and servant, it is the law that although ten or one hundred persons are given employment the same day under the same conditions of service, the contract of employment is personal or domestic to each of the persons. In the event of breach, the persons do not have collective right to sue or be represented in a suit”. It is therefore a moot point to argue that their cause of action arose on the same date or time though it is not the case on in the present suit. Counsel referred the court to Order 3 of the Rules of this Court and Section 254 (1) (C) of the 1999 Constitution as amended, to the effect that a perusal of the constitution and the rules of this court does not envisage a joint action by the claimants in this suit. In arguing issue two (2), it is the submission of Counsel for the Applicant that with the appointment of a Receiver/Manager, the company neither loses its legal personality nor its title to the goods in receivership. It is only the right to deal with the goods that is suspended during the receivership. The company however still retains its legal personality and can be sued in its own name in respect of actions which properly lie. See INTERCONTRACTORS NIGERIA LTD. vs. NATIONAL PROVIDENT FUND MANAGEMENT BOARD (1988) 2 NWLR (Pt. 76) 280 @ 282 – 283. See also INTERCONTRACTORS NIGERIA LTD vs. U.A.C. OF NIGERIA LTD. (1988) 2 NWLR (Pt. 76) P. 303 @ 306. Counsel urged the court to resolve the issues in favour of the defendant/applicant against the claimants and strike out this suit as being incompetent and for want of jurisdiction. In opposition, the Claimants’ Counsel filed a reply on points of law wherein he pointed out and applied that paragraph 4(a) and (b) of the applicant’s affidavit in support of this application should be struck out on the grounds that the said paragraph offends the law guiding affidavits in section 115(1) and (2) of the Evidence Act. 2011. According to Counsel, the said paragraph 4(a) and (b) constitutes objection, legal argument and a conclusion. He referred to the case of NIGERIAN LNG. LTD vs. AFRICAN DEVELOPMENT INSURANCE CO. LTD. (1995) 8 NWLR (Pt. 416) 677 @ 699 – 700. ; ABU vs. ALELE – WILLIAMS (1992) 5 NWLR (Pt. 241) 340. The Claimants did not file a Counter affidavit. Reason being, according to counsel, that it is the law that an affidavit that is self-contradictory or if the facts contained therein are presumed to be true and when taken together are not sufficient to sustain the prayers of the applicant, it would be needless for a respondent to file a counter affidavit. He referred to the case of ROYAL EXCHANGE vs. ASWANI TEXTILE (1992) 2 SCNJ 346 @ 347 and submitted that there is nothing in the affidavit in support of the defendant’s affidavit that warrants the claimants to file a counter-affidavit because there is nothing to counter. In his reply on points of law to the issues raised by the applicants, Counsel for the Claimants submitted that none of the issues raised by the defendant in this preliminary objection is a jurisdiction issue notwithstanding that the defendant tagged it to be jurisdictional matters. He submitted that none of them fall under the three conditions stated in MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341 i.e. the court must be properly constituted as regards numbers and qualifications of the member of the bench, the subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction, and the case comes by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. He referred further to the case of MILAD BENUE STATE vs. ABAYILO (2001) 5 NWLR (Pt. 705) 19 @ 31. He went on that the law is very clear on the preliminary objection of the defendant as to whether it can file the preliminary objection at this stage that its statement of defence has already been filed in this matter. According to counsel for the Claimants, the court cannot entertain this application at this stage, as it not an application challenging the jurisdiction of the court properly and it was brought when the statement of defence is already before the court, in the case of ODIVE vs. OBOR (1874) 2 SC, 23; (1974) 2 S.C. (Reprint) 18 the Supreme Court held that it is wrong for a trial court to uphold the preliminary objection of a defendant at the stage in the proceeding when the statement of defence has already been filed and the issues joined between the parties, once issue have been joined, it is wrong to entertain a preliminary objection without any further evidence on the merits. Counsel urged the court to reject the application on 20-2/2015 and proceed with the hearing of this matter on merit, the defendant can raise them at the final address and the court can decide them first before considering the merit of the suit. Assuming the court is minded to consider the application at this stage, Counsel sought leave of court to rely on the documents already filed, and which are before the court. He proceeded to submit in respect of the issues raised in the defendant’s application that in considering the present application before the court, the only documents your Lordship can look at to determine this application are the writ or complaint and statement of claim or fact and nothing more. It is settled law that in ascertaining the competence of a suit, the determining factor is the plaintiff’s claim, on this question however, it is not the manner in which the claim is conducted that matters, nor is the categorization given to the claim by the defendant that counts, the court has a duty to carefully examine the Reliefs claimed to ascertain what the claim is all about. He referred to the case of WAEC vs. ADEYANJU (2008) 4 S.C. 27. In reaction to the defendant’s contention that this matter is incompetent on the ground that the claimants filed one suit instead of different suit and called it misjoinder of parties and causes and heavily submitted that the Rules of this court and the constitution does not envisage a joint action, Counsel for the Claimants submitted, referring to the case of ODUWOLE vs. L.S.DP.C. (2003) 43 WRN 48 @ 49 that it is elementary law of practice that joinder or misjoinder of parties does not rob the court of its jurisdiction. See also OSUN STATE GOVT. vs. DALAMI (NIG.) LTD. (2003) 7 NWLR (Pt. 818) 72 @ 78. Also in the case of OLUWANIYI vs. ADEWUMI (2008) 43 WRN 73 @ 84, the Court of Appeal held that misjoinder or non-joinder of parties does not affect the action or the jurisdiction of the court On the submission of the defendant that the Rules of court and the constitution do not recognize joinder of parties, Counsel submitted that the Rules of this Court recognizes more than one person to institute an action jointly, and even recognizes a representative action. He referred to Order 26 Rule 13 and indeed Order 1 Rule 3 (2) of the Rules of this Court which start with the following: “In these Rules unless the context otherwise requires……” He said it is the law that that where “unless” is used in the law or Rules, it means “if it be not that” or “except”. He referred to the case of WUYEP v. WUYEP (1997) 10 NWLR (Pt. 523) 154 at 165. He went further that while “claimant” was used in the Rules of Court in a singular way, it is also a plural. He referred to Section 14 of the Interpretation Act, Cap. 123 as follows: “In an enactment: (a) Words importing the masculine gender include female (b) Words in the singular include the plural and words in the plural include the singular”. Counsel submitted that Order 3 of the Rules of this Court and indeed the law establishing this Court allows joinder of parties and of actions i.e. Section 54(1) of the NIC Act, 2006. The Statement of Claim and the witnesses’ depositions are very clear. There is therefore no provision of the Rules or of any law that the joinder offend. Counsel urged the Court to overrule the defendant on this issue, pointing out that the authorities cited by Counsel for the defendant such as the WAEC or House of Lords cases and the case C.C.B. v. ROSE (Supra) are not applicable in this matter. He said the defendant quoted the learned Justices out of context. He urged the Court to discountenance the cases and arguments and invoke Order 15 of the Rules of this Court which makes provision and empowers the court to do substantial justice to the parties whether the Rules made inadequate provisions or no provisions at all. The cases referred to by defendants were cases when technicalities were the order of the day. But this court is established to do substantial justice not technicality. He urged the Court to discountenance the defendant’s argument on this issue. As regards the defendant’s submission that the Claimant ought to have sued the Company directly and not the liquidator by name, Counsel for the Claimants pointed out the need to correct the impression created by the defendant that the Claimants sued Oluseye Opasanya SAN in his personal capacity. The truth is that Opasanya was sued in his official capacity as the Liquidator/Manager and all the cases referred to by the defendant were specific on the matter. The defendant was trying to misinterpret the authorities. In the case of INTERCONTINENTAL NIG. LTD. vs. UAC (2004) 28 WRN 41 @ 79 (which was cited by the defendant) Oputa JSC held as follows: “Once a Receiver/Manager is appointed he becomes the alter ego of the company and the power of the company to deal with the assets in the ordinary course of business ceases, although the company continues to exist as a company until it is wound up. When appointed it is the company when a company is in receivership, it cannot take actions by itself. The Receivership/Manager has to sue for and on behalf of the company”. In the case of ATOJU vs. TRIUMPH BANK PLC (2014) 8 WRN 54 @ 72, the claimant/appellant sued Triumph Bank Plc who was in liquidation and the defendant objected to it and the suit was struck out and the appeal was also dismissed and the court ruled that since the Bank is in liquidation, that it was the liquidator that the appellant ought to have sued and not the bank. What the claimants are asking for in this suit are the arrears of their salaries and entitlements which can be conveniently called “debt” and whenever the claimants are suing a company in liquidation for debts, especially unsecured debts as the claims of the claimants, the proper defendant is the Receiver/Manager not the company. That was what the Supreme Court held in the case of INTERCONTINENTAL NIG. LTD. v. NPFMB (2004) 18 WRN 1 @ 10 where Oputa JSC held as follows: “But any action questioning secured debts and unsecured debts and the proper priority of each class, will be at the suit of the Receiver and not the Appellant/Company”. Counsel urged the Court relying on the above cases including those cited by the defendant in its written address, to hold that the defendant was not sued in his personal capacity but in his capacity as the Receive/Manager of LONESTAR DRILLING LTD. He relied further on the Supreme Court case of ABEKHE v. NDIC (1995) 7 NWLR (pt. 406) 228 @ 242. He urged the Court to overrule the defendant on this issue and to hold that the defendant was properly sued by the claimant. On the issue raised by the defendant to the effect of the refusal of the 2nd, 3rd, 5th and 6th claimants to approach arbitration panel before coming to court, thereby robbing the court the jurisdiction to entertain the action, It is the Claimants’ submission that there is no document before the court to show that there is an arbitration clause in the agreement of the 3rd, 5th and 6th claimants in this matter. Counsel urged the court to peruse the documents of the claimants before the court. Even though there appears to be an attempt to inset an arbitration clause in the Agreement of the 2nd claimant, the wordings was very clear that arbitration is not compulsory. Counsel referred to paragraph 11.0 of the 2nd Claimant’s agreement which states as follows: “Parties agree that if parties so require, any dispute arising out of or in connection with this Agreement…..” These wordings are very clear and do not create an arbitration clause in law, as it is not mandatory. Assuming that the Court holds that notwithstanding how it was couched that an arbitration clause has been created, it is Counsel’s submission that Section 4 (4) of Arbitration and Conciliation Act, Cap. A. 18 LFN 2004 clearly states that where an action that ought to have commenced at an Arbitration panel has been brought before a court, arbitral proceedings may nevertheless be commenced or continued, and an award may be made by the arbitral tribunal while the matter is pending before the court. He cited the case of ONWARD ENT. LTD vs. MATRIX (2009) 4 WRN 103 @ 113. See the case of OBEMBE vs. WEMABOD ESTATES LTD (1977) 11 NSCC 264, where the Supreme Court Coram Fatayi Williams CJN (of blessed memory) at Pgs. 18 – 19 paragraphs E – A held as follows: “Any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission”. Counsel urged the Court to discountenance the argument of the defendant on the issue of arbitration clause and hear the case of the claimants and to dismiss the application of the defendant in its entirety and allow the claimants to prove their case to finality. The defendant filed a response to the Claimant’s Reply to the Defendant’s Notice of Preliminary Objection. According to the defendant, the claimants/respondents at paragraphs 1.02 - 1.04 of their reply missed the point completely when they argued that the Applicant’s affidavit did not comply with Section 115(1) (2) of the Evidence Act 2011. On the other hand according to Counsel, the said affidavit complied with the sections of law cited, as the applicant deposed to what was his belief in a matter of fact as he was informed by his Solicitor. See EDU vs. CAWRRD (2001) FWLR (Pt. 55) 433. The court held inter alia Per EDOZIE JCA: “it is not disputed that the facts deposed to in the appellants supporting affidavit by Mr. Mathew Ezego are not within his personal knowledge. To satisfy the requirement of Sections 86, 88 and 89 of the Evidence Act (1990) (now Sections 115(1)(3)(4) of Evidence Act 2011), he ought to have set forth in the further and better affidavit facts and circumstances forming the ground of his belief i.e. the name of the informant, reasonable particulars pertaining to the informant. This was complied with by the deponent”. Counsel submitted on the issue of jurisdiction that the claimants’ Counsel missed the point entirely at paragraphs 201 – 204 of his Written Address in opposition to the preliminary objection on jurisdiction of this court where he argued that issues raised did not affect the jurisdiction of this court. The correct proposition is contained in the case of A.G. LAGOS STATE vs. DOSUMU (1989) 3 NWLR (Pt. 111) P. 552, 558 P.P 566 – 567 paras. H – B where OPUTA JSC delivering the lead judgment held as follows; “An attack on jurisdiction is no doubt a question of law. It is a question of law but it is much more than that. It is a question of competence. It is the power and authority of a court to proceed to hear and determine the particular case before it. Jurisdiction exists:- (a) When the court has cognizance of a class of cases involved; (b) Proper parties are present in court; and (c) The point to be decided is within the powers of the court. He went on that the case of MADUKOLU vs. NKEMDILIM (1962) 1 All NLR 587 @ 595 cited by the Counsel to the claimants was considered by the Supreme Court in the A.G. LAGOS vs. DOSUNMU @ Pg. 567. The court held that “In MADUKOLU vs. NKEMDILIM (SUPRA), the concept though the same, different classification was adopted viz:- (1) It is properly constituted as regards numbers and qualifications of the members of the Bench and no member is disqualified for one reason or another; and (2) The subject matter of the case is within jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and (3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. To the defendants, misjoinder of parties and causes of action by a claimant is an issue of jurisdiction. Also, misjoinder of parties, and causes of action is a threshold issue. Competence and or incompetence of parties and causes of action are obviously an issue of jurisdiction C.C. B (NIG.) PLC vs. ROSE (1998) 4 NWLR (Pt. 544) PG. 37. Order 15 of the National Industrial Court Rules 2006 allows this court to adopt the uniform civil procedure rules applicable in states of Nigeria. Counsel therefore commended the HIGH COURT OF IMO STATE (CIVIL PROCEDURE) RULES 2008 to the Court. Order 22 of the said Rules provides as follows:- 1. No demurrer shall be allowed. 2. (i) Any party may by his pleadings raise any point of law and the judge may dispose of the point so raised. (ii) If in the opinion of the judge, the decision on such point of law substantially disposes of the whole proceedings or any distinct part thereof, the judge may make such decision as may be just. Counsel therefore urged the court to settle the issue of jurisdiction as raised as it will substantially dispose of this suit. He also pointed out that the defendant entered appearance in this suit under protest. On the issue of incompetence of the suit based on joint suit by the claimants whose employment, contract of service are distinct and separate, Counsel said that the claimants again missed the point at paragraphs 206 – 214 of their Written Address. The reliefs sought in this suit ought to be varied and distinct but rather, they are all lumped together as one relief. The sums claimed are several, distinct and cannot be lumped into one sum. Order 1 Rule 3 (2) cited by the claimants’ counsel does not help them at all. In fact it clearly makes it clear that the Rules of this court does not envisage joint claimants and/or causes of action. Similarly, Order 26 Rule 13 cited is not helpful to the claimant in any form. The claimants’ counsel lifted some portion of the cases cited by the applicant i.e. INTERCONTINENTAL NIG. LTD. vs. UAC and INTERCONTINENTAL NIG. LTD vs. NPFMB out of context. The primary duty of the Receiver/Manager appointed by a debenture holder is usually in order that he may carry on the business of the company although his primary duty is to the debenture holder as in the instant case. The claimants’ submission at paragraph 218 are situations concerning a liquidator not a Receiver/Manager. On arbitral award, Counsel submitted that paragraph 2.24 of the claimant’s address is an attempt to play down an arbitration clause in a contract of employment. He submitted that the contracts of the affected claimants laced with arbitral clauses bind them in accordance to Arbitration and Conciliation Act. Concluding, Counsel urged the court to strike out this suit as incompetent. In this application, the defendant has urged this court to strike out the suit of the claimants for three reasons which are: i. There is a misjoinder of the claimants as they each have separate contract of service with the defendant ii. The defendant is not a necessary party to this suit. iii. The claimants have not explored the arbitration clause in their contract agreement before commencing the suit. The defendant’s counsel has formulated 3 issues for determination in line with the above 3 identified grounds of the application. I shall adopt the 3 issues formulated by the defendant’s counsel but with little modifications. The issues to be determined in this application are as follows: 1. Whether the defendant is a necessary party to this suit? 2. Whether the claimants’ suit is competent in view of the facts that they each have separate contracts of employment with the defendant? 3. Whether there is an arbitration clause in the contract of the claimants and whether non-compliance with the clause renders this suit incompetent? ISSUE 1: One of the grounds of the defendant’s application is that the defendant is not a necessary party to this suit because the person to be sued in respect of the claimants’ claims is their employer, Lonestar Drilling (Nig) Ltd. The defendant’s counsel submitted, in issue II of his written address, that notwithstanding the appointment of the defendant as the Receiver/Manager for the company, the company still retains its legal personality and can be sued by the claimants. What the defendant’s counsel appears to me to be saying is that since the company can be sued, the defendant ought not to have been sued. The circumstance of the defendant’s appointment as the Receiver/Manager of Lonestar Drilling (Nig.) Ltd has not been disclosed anywhere in this application or in the pleading of the parties. It is however recognised that a Receiver is a person appointed by a court for the purpose of preserving the property of a debtor pending an action against him or applying the property in satisfaction of a creditor claims. See ADETONA vs. ZENITH INTERNATIONAL BANK LTD (2008) All FWLR (Pt. 440) 796 at 806. See also Section 393 of the Companies and Allied Matters Act. In this case, the claims of the claimants against their employer make them creditors to their employer. The claims the Receiver is entitled to settle include the nature of the claimants’ claims. Therefore, the defendant, being the Receiver/Manager of the claimants’ employer, Lonestar Drilling (Nig) Ltd, he is a necessary party to the claimants suit. I so hold. I resolve this issue against the defendant. From the foregoing and as shown on the claimants employment letters frontloaded along with the Complaint, the claimants employer is Lonestar Drilling Nig Ltd. This company has not been shown to have been wound up. Unless a company has been wound up or liquidated, it does not lose its legal personality when it is under receivership. It can still sue or be sued. Lonestar Drilling is also a necessary party this case. In order to properly determine this matter, I shall order that it be joined to this suit as the 2nd defendant. It is so ordered. ISSUE 2: In paragraph 4 (a) and (b) of the supporting affidavit, it is deposed that the claimants’ suit is incompetent for misjoinder of parties and the rules of this court does not envisage multiplicity of parties or cause of action. In his submissions, the defendant’s counsel argued that the claimants, who contracted individually with the defendant at different times with different terms and conditions of service, cannot collectively sue the defendant in one suit. It is necessary to make the point that this suit is not in a representative capacity. The claimants did not sue or plead representative action but plead severally the causes of action and claimed some monetary reliefs against the defendant as their individual entitlements. There is no doubt that each of the claimants had separate contracts of service with the defendant but a look at paragraphs 9, 12, 13, 14, 16 and 24 of statement of facts, reveal that they have similar terms of employment, common cause of action and similar reliefs against the defendant. In view of these pleadings, it appears to me the action of the claimants is permissible. Joinder of persons in one action as plaintiffs or claimants or the joinder of causes of action is permissible if these conditions are shown: i That the right to reliefs in respect of or arises out of the same transaction or series of transactions, and ii. That if separate actions were brought by such persons. A common question of law or fact would arise. It is clear from the facts of the claimants’ pleadings that the rights of the claimants to the reliefs they seek arose from a series of transaction. The complaint of each of the claimant is similar in nature to those of the others and was against the same defendant such that if the claimants have brought different actions against the defendant, a common question of law could arise for determination. In such a situation, it is desirable and conducive to have a joint action or claim by the claimants in this case rather than bringing multiple claims or actions which actions may eventually be consolidated. Instead of allowing them to take separate actions, causing multiplicity of actions, it is desirable if they sue jointly as they have now done. By Section 14 of the National Industrial Court Act, this Court is enjoined to avoid multiplicity of legal proceedings. The said Section provides as follows: 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 thinks 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. (Underlining supplied for emphasis). By the above provision, it is clear that it is expedient that multiplicity of actions be avoided or minimized as much as possible. The claims of the claimants in this suit are for their unpaid salaries, allowances and payment in lieu of notice which they alleged arose upon the termination of their employments. Therefore, notwithstanding that they were employed at different dates, and for different jobs, the same issue of law and fact are likely to arise. Having regard to the facts pleaded by the claimants showing that the right to the reliefs sought by the claimants arose out of the same transaction and the common question of law and fact would arise for determination even if separate suits are filed by each of the claimants, it is my view that a single suit as presently constituted is appropriate notwithstanding that the claimants have separate contracts of service with the defendant. See BEST OIL LTD vs. ORUOSA (2003) FWLR (Pt. 147) 1038; TAIWO vs. A.R.M.T.I (2012) All FWLR (Pt. 617) 781; C.B.N vs. ADEDEJI (2005) All FWLR (Pt. 244) 912. Counsel to the defendant relied on the Court of Appeal case of C & C BANK (NIG) LTD vs. ROSE to support his contention. It appears to me that case will not apply here because in that case, Order 3 rule 3 of the High Court of Anambra State (Civil Procedure) Rules was specifically considered. The Rules of this court does not have a similar provision. Furthermore, the English authorities cited on this point by the defendant’s counsel have only persuasive effect on this court and they cannot be of any use in this instant case in view of the decisions in TAIWO vs. A.R.M.T.I and CBN vs. ADEDEJI permitting joinder of causes of action; and indeed Section 14 of the NIC Act. Issue two is resolved against the defendant. ISSUE 3: Ground (f) of the defendant’s application contain that the 2nd, 3rd, 5th and 6th claimants have arbitration clauses in their employment contracts. In his argument on issue (iii) formulated by him, the defendant’s counsel submitted that until the claimants claims are referred to Arbitral Panel, no court will have jurisdiction to entertain their claims. I have noticed however that the defendant did not annex to the supporting affidavit the employment contracts of the said claimants which contain the arbitration clause neither did the defendant’s counsel point the attention of this court to any document of the claimants containing an arbitration clause to aid this court in resolving the issue. However, in the attempt of this court to see that the issue is resolved, I went on to examine other processes in the record of this court as filed by the parties. A look at the documents frontloaded with the statement of defence has no such contract document. The claimants did plead their employment letters and frontloaded some of the claimants’. That is where I find what looks like an arbitration clause in the employment letter of ‘DARAMOLA ADEBOLA SUNNY’, the 2nd claimant in this suit. The clause reads: “Notwithstanding clause 9.0, parties agree that if parties so require, any dispute arising out of or in connection with this agreement --- shall be referred to and settled by Arbitration in accordance with the Arbitration and Conciliation Act or any other appropriate Nigerian Arbitration procedure.” It is trite that in a contract agreement where there is an arbitration clause, the parties first submitting to arbitration is a condition precedent to exercise of court’s jurisdiction. See MARITIME ACADEMY OF NIGERIA vs. ASSOCIATED QUANTITY SURVEYORS (2008) All FWLR (Pt. 406) 1872. But in this case, can it be said that the arbitration clause in the 2nd claimants’ contract of service mandates arbitration? As have been observed above, of the employment letters frontloaded by the claimants, only that of the 2nd claimant contains an arbitration clause. A reading of that clause discloses that whether to submit their dispute to arbitration is subject to further agreement of the parties or whenever any of the contracting parties elect to submit the dispute under their contract to arbitration. The words “if parties so require” mean that the parties have the option of either subjecting their dispute to arbitration or not. It has not mandated the parties to first explore arbitration before filing a suit. Now that he 2nd claimant has elected not to arbitrate the dispute but to initiate an action in court, it cannot be said that his claim is not competent. The defendant’s Counsel cited Section 4 and 34 of the Arbitration and Conciliation Act and it appears to me his argument is that those Sections make it mandatory for arbitration. With respect to counsel, the provision of Section 4 of the Arbitration and Conciliation Act does not apply to this case. The Section contemplates a situation where a proceeding is brought in respect of a contract specifically agreed by the parties to be subject to arbitration. In this case, only the 2nd claimant has an arbitration clause but the clause only requires arbitration if the parties so decide. This issue is also resolved against the defendant. In the final analysis, the defendant’s application has no merit and it is hereby dismissed. Lonestar Drilling Nig Ltd is hereby joined to this suit as the 2nd defendant. Copies of the processes filed by the claimants are to be served on it. Cost of N50,000.00 is awarded in favour of the Claimants. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge