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National Industrial Court

Chief Temple C. Ubani -VS- National Salaries, Incomes & Wages

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

 

Dated this 22nd day of June, 2018            SUIT N0: NICN/ABJ/210/2016

BETWEEN

CHIEF TEMPLE C. UBANI …………………… …………………………….CLAIMANTS/RESPONDENTS

(on Behalf of Himself & 15,464 OTHER PENSIONERS OF DEFUNCT PHCN UNDER THE SUPERVISION OF FEDERAL MINISTRY OF POWER)

AND

  1. FEDERAL MINISTRY OF POWER
  2. PENSION TRANSITIONAL ARRANGEMENTDIRECTORATE
  3. NATIONAL SALARIES, INCOMES & WAGES COMMISSION
  4. ATTORNEY GENERAL OF THE FEDERATION OF NIGERIA…….DEFENDANTS/ RESPONDENTS

AND

  1. Barrister Abel Osas Eikhor

(on behalf of Himself and Members of Nigeria Union of Pensioners(Electricity Sector))

  1. Comrade (Elder) Benjamin Amako
  2. Comrade (Alhaji) Sa’adu Ibrahim Nock

(on  behalf of themselves and 12,000 other pensioners of defunct PHCN under the supervision of Federal Ministry of Power) ……………………..Applicants seeking to be joined

 

REPRESENTATIONS:

Onyeka Robert Eze……………….For the Claimant/Respondent

Aisha Shehu (on brief of T. Festus Abibo)………for 3rd Defendants

P.A. Bello with M.O. Adjeh and P.A. Bello Junior for the 1st Applicant seeking to be joined.

M.C. Ajoku for 2nd and 3rd  Applicants seeking to be joined

RULING

This suit was originated by a complaint filed on the 10th of June 2016 and amended on the 20th of July, 2016. The matter was initially before the Hon. President, B.A. Adejumo before being transferred to this court sometime in October, 2017. Accompanying the complaint is a statement of fact, witness statement on oath,  list of witnesses, list of exhibits and copies of same.

The Claimant is through the Complaint and statement of facts claiming against the Defendants the following claims:

  1. A DECLARATION that pursuant to S.173 of the 1999 constitution of the Federal Republic of Nigeria as amended that the defendants are duty bound to review the pension of the claimant(s).
  2. A DECLARATION that the failure, refusal and neglect of the defendants to effect the review as contemplated by S.173 of the 1999 Constitution of the Federal Republic of Nigeria as amended has occasioned him great loss, hardship, deprivation which could have been avoided if the defendants had been alive to their responsibilities.
  3. AN ORDER compelling the defendants to review the pension of the claimant and other beneficiaries of the defunct Power Holding Company of Nigeria (PHCN) in consonance with the circular REF: SWC/S/04/S.542/26 of September 2014 of 3rd Defendant and in the spirit of S.173 of the 1999 constitution of the Federal Republic of Nigeria as amended which review as at date ought to have been done and arrears paid.
  4. A DECLARATION that the directive in circular REF: SWC/S/04/S.542/26 dated 26/9/14 of 3rd Defendant and the approval issued for all the public service pensioners of the Federal Republic of Nigeria under the defined pension benefit scheme to the 2nd defendant is without discrimination to citizen of Nigeria in the spirit of the 1999 Constitution, to adjust the pension benefit of the claimant(s) every five years and payment of arrears due to claimant in consonance with the spirit of section 173 of constitution of the Federal Republic of Nigeria as amended.
  5. A DECLARATION that the 2nd& 3rddefendants were wrong to have refused or neglected to act upon the Presidential directive in circular REF:SWC/S/04/S.542/26 for public service retirees issued on 26/9/14 to review the pension benefit of the claimant(s) categorized under CONPSS.
  6. A DECLARATION that the 3rd defendant was wrong to allude or deny in it’s letter Reference SWC/S/04/S.557/T/11 9thMarch, 2015 issued to 2nddefendant that the PHCN retirees are not entitled to pension increase or review of benefit to match inflation in the said Presidential directive or circular for the general increase of 33% to retirees of the public service under the defined pension benefit scheme because the hazardous nature of their work exposure at the time in active service or employment gave them better salary before retirement, is an aberration and contrary to section 173 of the constitution of Federal Republic of Nigeria 1999.
  7. A DECLARATION that the claimant and 15,464 others are entitled to a review of their pension benefit as applicable to all public service retirees under the defined pension benefit scheme as stated in the circular REF:SWC/S/04/S.542/26 and enshrined in the constitution of the Federal Republic of Nigeria.
  8. An ORDER nullifying the misconceived letter of 3rddefendant to the 2nddefendant dated 9th March, 2015 to stop the 33% increase in the pension benefit of the Power Holding Company of Nigeria retirees inconsistent with the constitution of Nigeria Section 173, 1999 and the express wordings contained in the 2014 circular of the Presidential approval for the 33% increase in pension for all the pensioners in Nigeria under the defined pension benefit, old pension scheme, not the Federal Government contributory pension and without exemption of the pensioners of PHCN in the circular.
  9. AN ORDER directing the defendant to effect and reflect the 33% increase in pension benefit for all the pensioners of the PHCN classified under CONPSS as expressly directed in the circular dated 26thSeptember, 2014 for all pensioners in Nigeria without the express exemption or discrimination of the pensioners of PHCN and consistent with the constitution of Federal Republic of Nigeria, 1999.
  10. AN ORDER directing the Director (sic) Compensation of the 3rd defendant to effect the decision of the President, Commander in-Chief of the Armed Forces unadulterated as contained in the circular REF:SWC/S/04/S.542/26 of 26/9/2014 to review the pension benefit of retired Federal Public Servants by 33% and without discrimination or exemption of the claimant(s) in the circular already with 2nddefendant.
  11. AN ORDER restraining the defendants from entering into further negotiation, interpretation to derogate from the Presidential directive of the President of the Federal Republic of Nigeria on account of the increase in pension benefit as it affect the claimant(s).

In reaction to the above, the 2nd defendant filed their statement of defence on the 19th of October, 2016 along with a witness statement on oath, list of witnesses, list of exhibits and copies of same.

The Claimant filed a reply to the above statement of defence on the 19th of September, 2017.

Upon the matter set for hearing, the three Applicants seeking to be joined filed their applications. That of the 2nd and 3rd  Applicants was withdrawn and consequently struck out leaving only that of the 1st Applicant who filed a motion on notice on the 11th of January, 2018  brought pursuant to Order 13 rule 1(3) of the rules of this court. The said application is supported by a 9 paragraph affidavit deposed to by Barrister Abel Osas Eikhor, 3 annexures and a written address.

The said motion is praying for the following reliefs:

  1. An order joining the Applicant as Co-Claimant in Suit No: NICN/ABJ/210/2016 before this Honourable Court.
  2. And for such further order or orders as the Honourable Court may deem fit to make in the circumstances.

The said motion is predicated on the following grounds:

  1. The Suit was filed by the Claimant/Respondent in a representative capacity, when he was the National Chairman of the Electricity Sector Pensioners, a Sectorial Unit under the Nigeria Union of Pensioners.
  2. The Claimant and some few members of the Sector have pulled out of the Nigeria Union of Pensioners to form their own Association known as Electricity Sector Retirees Welfare Association.
  3. The Applicant is now the Acting National Chairman of the Electricity Sector Pensioners that remains loyal to the Nigeria Union of Pensioners. They have lost confidence in the Claimant and his ability to represent them in this Suit.
  4. The Applicant and members of the said Electricity Sector aforesaid have interests in the pending case before the Honourable Court, and their interests are better protected if this application is granted.

In reaction to the said motion, the Claimant filed a notice of Preliminary objection on the 4th of April 2018 to challenge the competency of the application and brought same pursuant to section 6 (6) (b) of the 1999 Constitution of Federal Republic of Nigeria and Order 13 rule 1 of the rules of this court. The notice is praying this court for the following orders:

  1. AN ORDER striking-out the Application of 1st2nd & 3rd Applicants for joinder as Co-Claimants in suit No: NICN/ABJ/210/2017 for being incompetent.
  2. AN ORDER, joining all persons or retirees of defunct NEPA/PHCN, as claimant(s) being interested/necessary party in Suit No: NICN/ABJ/210/2016.
  3. And for such other order(s) as the Honourable court may deem fit to make in the circumstance

The notice of preliminary objection is predicated on the  following grounds:

  1. The 1st, 2nd& 3rdApplicants/Respondents’ application for joinder as co-claimant(s) or representative capacity did not conform with the rule of court. Therefore, the applicants cannot be joined as co-claimant(s) in suit of claimant.
  2. That all persons or retirees of defunct NEPA/PHCN being interest/necessary party be joined as Claimant(s) in suit of claimant No: NICN/ABJ/210/2016.
  3. The suit of claimant in his personal name as constituted before the Honourable Court is solely for his pension entitlement payment and on behalf of the other retirees of defunct NEPA/PHCN.
  4. The claim of personal pension entitlement from 2nd& 3rddefendants under the suit is not connected with any leadership tussle of Nigeria Union of Pensioners (NUP) or NUP — Electricity Sector of 1st Applicant nor the Electricity Sector Retirees Welfare Association (ESREWA) falsely described as a Pull-Out of a few retirees.
  5. The 1stApplicant/Respondent in pursuit of his leadership tussle filed this application without showing evidence of those it claimed to be representing and coming from a platform (NUP) not known by PHCN retirees lack’s the locus standi, to maintain the application.
  6. The 1st2nd & 3rd applicants are group of persons in leadership tussle with five (5) cases within the various division of the National Industrial Court of Nigeria in which 1st Applicant’s Counsel is involved and in their leadership tussle with calculated attempt to derail the pension entitlements payment to all PHCN Retirees from the 2nd and 3rd defendants.
  7. The applications herein are consequently incompetent and ought to be struck-out.

The notice of preliminary objection is supported by a 42 paragraph affidavit deposed to by Chief Temple C. Ubani, 4 annexures and a written address.

The 1st Applicant responded to the notice of preliminary objection by filing a reply on the 24th of April, 2018. Upon that, the Claimant filed a reply to Applicant’s reply to the preliminary objection.

Considering the peculiarity of the above narrative of processes filed before this court, I must state clearly that there are two processes before this court for the purpose of this ruling. One being an application for joinder as co-claimant and the other, a preliminary objection to bar this court from hearing the application for joinder. Ordinarily, these processes would have warranted separate rulings, however, in the circumstance of the preliminary objection being a direct barricade to the hearing of the motion for joinder, one ruling would suffice, taking into account both processes and starting with the preliminary objection. Generally, going by the holding of the court in INEC V. ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA & ANOR (2007) LPELR-8882(CA) where there are two motions with one being destructive while the other is constructive, the one that is constructive ought to be taken first. The court held that:

“Where there are two motions, one seeking to raise a point of non-compliance with a rule and an order of court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance as in this case, a court of justice and equity ought to take the motion which seeks to regularise the proceedings and preserve them from being struck out or summarily dismissed before considering the application for striking out or dismissal for non-compliance. In other words, where in a case there are two adversely competing motions before a court, one “constructive” and the other potentially “destructive”, the court will normally proceed to take the former first unless it will be inequitable to do so, so that if it succeeds there would be no need for the latter motion which will then be withdrawn and struck out accordingly”.

The preliminary objection of the Claimant is without doubt destructive, however, it is distinguishable from that in the above case or in the case of Nalsa & Team Associate. V. N.N.P.C. (1991) 8 NWLR (Pt.212) 652. It is distinguishable in the sense that the preliminary objection in the instant suit is not in respect of the entire suit or an attack on the jurisdiction of the court. Rather, as I noted earlier, it is intended to prevent the court from entertaining the application for joinder filed by the 1st Applicant on ground that same is incompetent amongst other grounds.

I shall then proceed to consider first the issues raised and argued in support of the preliminary objection.

From the written address in support of the preliminary objection, the learned counsel to the Claimant raised a lone issue for determination to wit:

Whether the Applications of 1st, 2nd & 3rd Applicants herein are not incompetent for not being within the National Industrial Court of Nigeria, Civil procedure rules, 2017.

In arguing the lone issue, counsel submitted that even though the National Industrial Court is only one Court with different divisions throughout the Federation of Nigeria, applications issuing out of the court for service on the other party must comply with provisions of the National Industrial Court of Nigeria, Civil Procedure rules, 2017.

Counsel went further to posit that for a court to have jurisdiction the following conditions must be present.

  1. The proper Parties are before the Court.
  2. The subject matter falls within the jurisdiction of the court.
  3. The composition of the Court as to members and qualifications.
  4. The suit commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction.

Counsel then argued that by Order 17 rule 1 of the rules of this court, a motion shall state under what Rules of the Court or Act or Law it is brought. But the Order 13 Rule 1(3) under which the Applicants brought their motion is non-existent in the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.

Counsel added that the applications of 1st, 2nd & 3rd Applicants are incompetent, fundamentally defective and incurable bad as there is no such provision as Order 13 Rule 1(3) in the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 for applicants to be joined as co-claimants in suit or in representative capacity. counsel cited the case of MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341.

Counsel further contended that the claimant instituted this action in his own name for claim of his personal entitlement and on behalf of all the retirees of defunct National Electric Power Authority/Power Holding Company of Nigeria without a connection with the Nigeria Union of Pensioners (NUP) at all.

 Counsel added that the effect of the action of Claimant commenced in a Representative capacity is that, it is not only the named Claimant who is a party to the action but the other persons who are not named but whom the named Claimant purports to represent are also parties to the action and they are parties because they are also bound by the result of the action. Counsel cited the case of OTAPO VS SUNMONU (1987) 2NWHR (PT.58)587

Counsel submitted that by the combined effect of Order 13 rule 11 (3) and Order 13 rule 1 of the Rules of this Honourable Court, the Respondents/Applicants are members of defunct NEPA/PHCN Retirees and all persons or retirees be joined as interested/necessary party in one action as claimant(s) in whom any right to reliefs is alleged to exist whether jointly or severally. Counsel cited the case of to PEENOK INVESTMENT LIMITED VS. HOTEL RESIDENTIAL LIMITED (1952) NCLR Pg 1 — Pg 75 at Pg 26.

Counsel also submitted that the Respondents/Applicants who are factional leaders of group cannot be joined as co-claimant in suit of claimant to represent persons in furtherance of their leadership tussle.

Counsel maintained that the Applicants failed to disclose their locus standi, particularly 1st Respondent/Applicant coming from a platform of NUP that has no relationship with Electricity Sector.

In conclusion, Counsel submitted that this application has merit and urged to the court to strike-out the application of 1st, 2nd  & 3rd  Applicants and consequently order the adoption of the settlement terms of the claimant and defendants in this suit accordingly.

In reaction to the preliminary objection, learned counsel to the 1st Applicant, P.A. Bello formulated two issues for determination to wit:

(a) Whether the application is competent.

(b) Whether having regard to the proper meaning of “Preliminary Objection” prayer No.2 can be properly accommodated by the Honourable Court.

In arguing issue one, learned counsel in respect of the contention that the application for joinder was brought under a non-existent rule, submitted that while it is true that the Applicant’s application was brought pursuant to Order 13 Rule 1(3) of the Rules of this Honourable Court i.e. Rule 11(3) and not Rule 1 (3), the law is very clear that bringing an application under a non-existent Rule of Court or under a wrong Rule of Court will not vitiate the application in so far as the Court has jurisdiction to grant the prayer. Counsel cited the case of  FALOBI V. FALOBI (1976) 1 NMLR 169.

Counsel argued further that it is quite strange and paradoxical for the Objector to have submitted that the Respondents/Applicants are members of defunct NEPA/PHCN Retirees and all Persons or Retirees be Joined as interested/necessary party in one action as Claimant(s) in whom any rights to reliefs is alleged to exist whether Jointly or Severally and at the same time submit as it were that the Applicants’ application is incompetent and that the Court has no jurisdiction to grant same.

Learned counsel maintained that the reasons for applying to be Joined as a Co-Claimant has been explained by the Applicant in paragraph 2, 3, 4, 5, and 6 of the Supporting Affidavit, which in summary is that the present Suit was filed on behalf of all the Pensioners of Power Holden Company of Nigeria (PHCN) by the Claimant, and that having regard, to subsequent developments, the Applicants have lost confidence in the ability of the named Claimant to represent them in this case, hence they have put forward the name of the Applicant as named Co-Claimant in this Suit to represent the 8000 Pensioners.

With regard to prayer 2 in the notice of preliminary objection, Counsel to 1st Applicant contended that same is self-defeating as it is an admission that the Applicant’s application for Joinder is worthy of favourable consideration and indeed ought to be granted in the circumstances. Counsel added that the said prayer does not amount to a preliminary objection. He cited the case of HASSAN V. BORNO STATE GOVERNMENT, (2017) ALL FWLR 389 AT P.412 PARA G on the purpose of a preliminary objection.

Counsel also urged the court to dismiss the notice of preliminary objection as an abuse of the Courts’ process most incompetent in its tenor and intendment.

By way of reply, counsel to the Claimant argued that there is nothing like proper meaning of preliminary objection in law, the ordinary and literary meaning of preliminary objection suffice in an application of this nature to challenge the jurisdiction of court which can be raised at any time and by any format. Counsel cited the case of AFRO CONTINENTAL (NIGERIA) LTD & ANOR VS CO-OPERATION ASSOCIATION (2003) 1 SCNJ AT 537.

Counsel further reiterated his arguments on the 1st Applicant not having locus standi and bringing his application under a wrong rule and maintained that the Applicant cannot enlarge the jurisdiction of this court.

Counsel concluded that the Claimant has made out a case to support the grant of his preliminary objection or application and the interest of justice will be better served to join each and every person who is a retiree of NEPA/PHCN as claimant that constitute the 15,464 retirees in the circumstances of this case.

I now turn to the Application for joinder. In support of the motion on notice for joinder, the 1st Applicant filed a written address wherein the Counsel did not raise any issue for determination but merely contended that this suit was instituted by the Claimant on behalf of the Electricity Sector Pensioners under the Umbrella of the Nigerian Union of Pensioners sometimes in 2016 which during the pendency of the suit, the Claimant and a few of his followers held a meeting at Asaba in Delta state where they voluntarily pulled out of the membership of the Nigerian Union of Pensioners and proceeded to form their own Association known as ‘Electricity Sector Retirees Welfare Association. Consequently, the Nigerian Union of Pensioners set up a caretaker committee to oversee the affairs of the Electricity Sector Pensioners which the 1st Applicant now heads as  Caretaker chairman.

Counsel then posited that it is upon the above that the 1st Applicant has brought this application under Order 13 Rule 11 (3) of the NIC Rules 2017 to be joined as an interested party. He also cited the case of Alafia v GV. Nig. Ltd (2016) All FWLR (Pt. 838) 792 at 823 -824.

Claimant also posited that as deposed in the affidavit, 8,000 members out of those whom the Claimant represented in this suit have lost confidence in the Claimant to represent them.

Counsel urged the court to grant the application in the interest of justice.

There was no counter affidavit nor written address in opposition of the said application by either the Claimant or the Defendants.

In view of the foregoing, particularly considering the preliminary objection filed by the Claimant, the application filed by the 1st Applicant seeking to be joined and the arguments of counsel arising from the written addresses in support and in opposition of the said processes, the issue for the determination of both the preliminary objection and the application for joinder are to wit:

  1. Whether in view of the preliminary objection of the Claimant, the application for joinder filed before this court by the 1st Applicant is competent and deserve to be heard.
  2. Whether or not, considering the circumstances of this case, the 1st Applicant seeking to be joined is entitled to the reliefs sought.

In addressing issue one, it is imperative to start by correcting the impression of learned Counsel to the Claimant who contended that there is nothing like proper meaning of preliminary objection in law. To correct that impression, I would start from the 8th Edition of Black’s Law Dictionary which defined ‘preliminary’ at page 1218 to mean “Coming before and usually leading up to the main part”. This apparently is not gratifying enough in view of the contention. On the same page, the Dictionary went further to define ‘preliminary objection’ itself  to mean “an objection that if upheld would render further proceedings before the Tribunal impossible or unnecessary; an objection to the court’s jurisdiction is an example of a preliminary objection”.

The court in a plethora of cases have had to provide the meaning and purpose of a preliminary objection. For instance in Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421 S.C. the Supreme Court held that:

“An objection in law portrays a formal opposition of an objector against the happening of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point.” Per Muhammed, J.S.C. (P. 41, Paras. C-D)

In the same case, per Muhammed J.S.C added emphatically that “a preliminary objection seeks to provide an initial objection before the actual commencement of the thing being objected to.” Per Muhammed, J.S.C. (P. 41, Paras. D-E) –

In addition to the above, the court in EXECUTIVE GOVERNOR OF OSUN STATE v. FOLORUNSHO (2014) LPELR-23088(CA) stated the usual objective of a preliminary objection when it held that:

“There is no doubt that the objective of preliminary objection is to terminate a case at the preliminary stage. That is to say that it is only issues that are free from any known legal handicap that should go to trial. See Yaro v. Arewa Construction & Ors. (2007) 6 SCNJ 418.” Per DENTON-WEST, J.C.A. (P. 22, paras. D-E)

Also, in A.-G., Fed. v. A.N.P.P. (2003) 18 NWLR (Pt.851)182, the court described the nature of a preliminary objection by holding that:

“Preliminary objection, by its very nature, deals strictly with law and there is no need for a supporting affidavit. In a preliminary objection, the applicant deals with law and the ground is that the court process has not complied with the enabling law or rules of court and therefore should be struck out. It could be on abuse of court process. The preliminary objection is successful, the court will not hear the merits of the matter as it will be struck out. However, if a preliminary objection leaves the exclusive domain of law and flirts with the facts of the case, then the burden rests on the applicant to justify the objection by adducing facts in an affidavit. The applicant, in that circumstance, stands the risk of his objection being thrown out or rejected, if he fails to satisfy the court of the facts he has relied upon.” Per TOBI, J.S.C (P. 22, paras. A-E

Going by the above authorities, it is without doubt that the preliminary objection of the Claimant was intended to object to the hearing of the application for joinder filed by the Applicants of which the 1st Applicant is the only one remaining. I must say, in view of the various meanings of preliminary objection, that it is an unusual practice to challenge the hearing of an application for joinder by way of preliminary objection. While I reckon that the application was brought under Order 13 Rule 1(3) instead of Order 13 Rule 11 (3), it is instructive to note that such inadvertence cannot rob this court of jurisdiction to hear the application for joinder as Order 5 Rule 1 of the same Rules of this court stipulates that failure to comply with any of these Rules may be treated as an irregularity and the court may give any direction as it thinks fit. It is also instructive to note that the written address wherein the Counsel to the 1st Applicant argued in support of the application bore Order 13 Rule 11 (3) which clearly indicates that there is an inadvertence. I have also taken due cognizance of the case of FALOBI v. FALOBI (1976) 9-10 S.C.  cited by the counsel to the 1st Applicant and rightly so, the court held that that “relief or remedy, if properly claimed by the party seeking it, cannot be denied to the applicant simply because he has applied for it under the wrong law.  To do so would be patently unjust.”   FATAYI-WILLIAMS, J.S.C.

Considering the foregoing, where an application is filed for joinder, such application deserves to be heard. The opportunity is always open for the other parties in the suit to oppose the application by stating reasons why the order for joinder should not be made via a counter affidavit supported by written address which can only be heard when the application for joinder itself is being moved.

In the same vein, it should be noted that there is a clear distinction between hearing an application and granting the prayers sought in the application. The court in Nalsa & Team Associate. V. N.N.P.C. (1991) 8 NWLR (Pt.212) 652 reckoned this position by holding that:

“It is important to appreciate the basic distinction between hearing an application and granting the prayers in it. Hearing an application does not necessarily mean granting the prayers sought. The prayers sought which if granted may remedy the defect in the errors, and render the preliminary objection unnecessary. If rejected, the preliminary objection can then be argued.” PER KARIBI WHYTE, J.S.C. (P. 37-38, paras. G-B)

With regards to hearing of applications, the court added that:

“It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before our courts. Accordingly, where an application is properly brought before the court, the principle of fair hearing demands that it should be heard on its merits.” PER KARIBI WYHTE, J.S.C. (Pp. 36-37, paras. G-A)

Considering the above authorities, I find that the preliminary objection of the Claimant is intended to raise the issue of competence of the application for joinder and objects to the hearing of same on the ground of the stated incompetence. In this regard, it is the holding of this court in view of Order 5 Rule 1 of the Rules of this court, that the application having been brought under Order 13 of the Rules of this court which is generally the Order for ‘Parties’, and the argument in support of the application having been based on Order 13 Rule 11 (3), the application for joinder is competent and therefore resolve issue one in favour of the 1st Applicant seeking to be joined.

With the resolution of issue one, before I pronounce on the status of the preliminary objection as a whole, I must state that I also find it to be an incongruity for the Claimant to have sought relief 2 via the said preliminary objection. Relief 2 is best described as an application for joinder in itself, although without a clarity as to who is to be joined. Consequently, considering the meaning of preliminary objection and the purpose which it serves, the said relief 2 is misplaced and cannot be given any consideration whatsoever.

In the final analysis, the said preliminary objection lacks merit and same is accordingly dismissed.

With regards to issue two, which is dependent on the 1st Applicant’s application for joinder as co-claimant. I must reiterate that neither the Claimant nor Defendants in this suit filed a counter affidavit or written address in opposition of the application. Therefore, the application is to be considered on its own merit.

In considering the said application, I start by paying attention to what a joinder is as held by the court in Ibigbami v. Mil. Gov., Ekiti State (2004) 4 NWLR (Pt.863) pg.243 that:

“BLACK’S LAW DICTIONARY, 7th Edition page 841 defines the term as follows: “JOINDER,” The uniting of parties or claims in a single law suit.” This clearly means that an application for joinder of a person as a co-plaintiff, as in this case, is an application for the joinder of a person who was not originally a party to the action.” Per ONNOGHEN, J.C.A. (as he then was) (P. 22, paras. A-B).

Consequent upon this holding, the question that necessarily follows is whether or not the 1st Applicant is not originally or already a party to this suit? In answering this question, I take a look at the processes filed by the Claimant to see who the original parties are. The original Claimant according to the Amended Complaint and other processes is one Temple C. Ubani, (suing on behalf of himself and 15,464 other Pensioners of Defunct PHCN under the Supervision of Federal Ministry of Power). This clearly shows that the action was instituted in representative capacity.

The next question therefore is what is the status of the 15,464 persons on whose behalf this suit was instituted? The court addressed this In re Ogundahunsi (2008) ALL FWLR (Pt.420) 671 at P. 695, paras D – E  when it held that:

“In a representative action, both the named plaintiff and/or defendant, as the case may be and those they represent are parties to the action, although the name representatives/plaintiffs and/or defendants are ‘dominis litis’ until the suit is finally disposed of. Those represented by the representatives are deemed to be in court so far as their representatives appear in court and all of them are bound by the outcome of the court’s decision. See Okotie v. Olughor (1995) 5 SCNJ 212; Atanda v. Olarewaju (1988) 4 NWLR (Pt. 89) 394; Okonji v. Njokanma (1989) 4 NWLR (Pt. 114) 161.” Per Agube JCA

Similar holding was earlier  made in Ibigbami v. Mil. Gov., Ekiti State (2004) 4 NWLR (Pt.863) pg.243 where the court  held that:

“In other words, when an action is initiated in representative capacity, as in the present case, such action is not only by or against the named plaintiffs or defendants but are also by and against those the named parties represent who are not stated nomine. To that extent, those represented, so long as the named parties are in court, are also deemed present at the trial of the action, through their representatives – See in re. Otuedon (1995) 4 NWLR (pt.392) 655 at 667.” Per ONNOGHEN, J.C.A. (Pp. 24-25, paras. C-D)

The implication of the above authorities is that the 15,464 other persons on whose behalf the named Claimant instituted this suit are originally and already parties to this suit for whom a joinder is no longer necessary.

The question however is whether the 1st Applicant and the members of Nigerian Union of Pensioners which he intends to represent are already included in the 15,464 other pensioners of the Defunct PHCN who are already before this court? In answering this question, I have recourse to the affidavit filed in support of the application for joinder.

By way of highlight, the Applicant deposed that this suit was instituted by the Claimant on behalf of members of Nigeria Union of Pensioners  sometimes in 2016 when he was the National Chairman of the Electricity Sector Pensioners, under the Nigerian Union of Pensioners a total number of 12,000 members drawn from retirees of Power Holding Company of Nigeria. The Claimant later pulled out from the Nigerian Union of Pensioners to form another Association called Electricity Sector Retirees Welfare Association which did not go down well with about 8,000 members of the Nigeria Union of Pensioners (NUP) and consequently, appointed the 1st Applicant to represent their interest in this suit having lost confidence in the Claimant.

The above fact do not readily provided an answer to the question and therefore I have to consider a joinder consequent upon the above deposition. That said, it is important to state that in the grant of joinder, the court shall take into account certain factors which the court highlighted In Re: NDIC v. Lawal [2007] 7 NWLR (Pt.1032)  that:

“Generally speaking in considering whether an order for joinder should be made or not, the court usually take into account a number of factors which include:

(a) Whether the party is aggrieved or likely to be aggrieved by the result of the litigation to the extent that he will be directly, legally or financially affected by the result of the litigation.

(b) To avoid multiplicity of action arising from or in relation or respect of the same subject-matter;

(c) To enable the court fully, completely and effectually deal with the suit in order to prevent, avoid or frustrate and stop possible future litigation on the subject-matter, and;

(d) To ensure that the principles of fair hearing enshrined under section 36(1) of the 1999 Constitution and natural justice rule of audi alteram partem are complied with and afforded persons to be affected by the result of the action.

Ogana II v. Awulor (1997) 9 NWLR (Pt. 522) 668; Okoli v. Ojiakor (1997) 1 NWLR (Pt. 479) 48; Yakubu v. Gov., Kogi State (1995) 8 NWLR (Pt. 414) 386; and Odeleye v. Adepegba (2001) 5 NWLR (Pt. 706) 330.” Per ADAMU, J.C.A. (P. 18, paras. F-G)

It is also instructive to note that this court has discretion in the grant or refusal of joinder depending largely on the circumstance of the case. The court in Ibigbami v. Mil. Gov., Ekiti State (2004) 4 NWLR (Pt.863) pg.243 held that:

“It is trite law that the question of whether or not to grant an application for joinder of a party calls for the exercise of the discretionary powers of the trial court which discretion must not only be exercised judicially but judiciously.” Per ONNOGHEN, J.C.A. (Pp. 22-23, paras. G-A)

Consequently, I have taken the above factors into account and guided my discretion by taking a careful look at the suit as initiated. I find that this suit is not on behalf of members of Nigeria Union of Pensioners (NUP) but on behalf of 15, 454 pensioners of defunct PHCN. Therefore, it is immaterial that the Applicant and the 8,000 members of the Nigeria Union of Pensioners have lost confidence in the Claimant since the suit is not on behalf of the members of NUP. Consequently, if the Applicant and other 8,000 members of the Nigeria Union of Pensioners are already inclusive of the 15,454 in that capacity as Pensioners of the Defunct PHCN, then this application for joinder is needless as they are already parties before this court.

In the final analysis, issue two is resolved against the 1st Applicant to the effect that considering the circumstances of this case, the 1st Applicant seeking to be joined is not entitled to the reliefs sought.

The application for joinder is consequently dismissed for lacking merit.

Ruling is accordingly entered.

 …………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.

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