IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE
DATE: 14TH MARCH, 2018
SUIT NO: NICN/YEN/136/2015
BETWEEN:
TEKEOPUYE DAVIS
0BIE OKOSEMIEMA CLAIMANTS/RESPONDENTS
AND
OIL OFFSHORE COMBINATION LIMITED —- DEFENDANT/APPLICANT
REPRESENTATION:
O. A. Nwachukwu with I. J. Davies (Mrs.) for the Claimants/Respondents
A. Amadi for the Defendant/Applicant
RULING/JUDGMENT
By a Complaint dated 26th November, 2015 and Statement of Facts dated 23rd November, 2015 and filed on the 26th November, 2015, the Claimants initiated this suit against the defendant claiming the following reliefs:
A declaration that the claimants are 2 of the 23 members of Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) Branch in the defendant company that their salaries and other emoluments or entitlements were stopped by the defendant on the basis of a unilateral and illegal declaration of a purported stand-by from January, 2011 to date.
A declaration that the claimants’ employments with the defendant were never and have never been terminated or determined till date but rather the claimants salaries and other emoluments or entitlements due them were stopped by the defendant on the basis of a unilateral and illegal declaration of a purported stand-by from January, 2011 to date.
A declaration that it is an unfair labour practice for the defendant to stopped(sic) the payment of the claimants salaries and other emoluments or entitlements due them on the basis of a unilateral and illegal declaration of a purported stand-by from January, 2011 to date as such the claimants are entitled to be paid their salaries and other emoluments or entitlements due them from the month January, 2011 to the date of final determination of this suit.
A declaration that by virtue of the Industrial Arbitration Panel Award made in favour of Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN), of which the claimants herein are members, against the defendant and which Award has become binding upon the Minister of Labour and Productivity publishing in the Federal Government of Nigeria Official Gazette No. 135, Volume 101 of 24th November, 2014 a notice confirming the same, the claimants who are part of the 23 members of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) affected by the Award have the right to apply for its interpretation and enforcement where their Union has failed, neglected, ignored and or refused to do so on their behalf.
An order that the defendant shall forthwith pay to the claimants their respective salaries and other emoluments or entitlements due them from the month January, 2011 to the date of final determination of this suit.
The cost of this action.
Upon service of the originating processes on the Defendant, the Defendant filed a Memorandum of Conditional Appearance dated 7th September, 2016, filed on 18th January, 2017 but deemed properly filed and served by order of court on 4th December, 2017.
It is pertinent to point out at this juncture that, by a Notice of Preliminary Objection dated 7th September, 2016 and filed on 18th January, 2017, the Defendant/Applicant challenged the jurisdiction of this court to hear and determine this suit and to dismiss same for being an abuse of court process, res judicata, and/or issue estoppel, or in the alternative strike out the name of the Defendant/Applicant for not being a juristic/legal person. The grounds for the Notice of Preliminary Objection are:
That the Claimants/Respondents through their representative, PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION (PENGASSAN), prosecuted Suit No. IAP/HB/3847: PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION (PENGASSAN) V. OIL OFFSHORE COMBINATIONS LIMITED (OOCL), before the Industrial Arbitration Panel (hereinafter referred to as the “Arbitral Tribunal”) which made an arbitral award in favour of the Claimants/Respondents dated 18th day of July, 2013 (hereinafter referred to as the “Arbitral Award”).
The Petroleum and Natural Gas Senior Staff Association (PENGASSAN) has on behalf of the Claimants/Respondents initiated an action before the National Industrial Court Holden at Abuja to enforce the purported award of the said Industrial Arbitration Panel for and on behalf of the Claimants/Respondents in this suit and 21 other members of Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN).
In furtherance of the Claimants/Respondents’ intention to enforce the Arbitral Award, the Petroleum and Natural Gas Senior Staff Association (PENGASSAN), filed a Motion dated the 17th day of February, 2016, wherein seeking for the following reliefs:
An Order granting leave to the First Party/Award Obligor/Applicant to enforce against the Second Party/Award Obligor/Respondent the award of the Tribunal of the Industrial Arbitration Panel (IAP) dated the 18th day of July, 2013.
And for such further Order or other orders as the Honourable court may deem fit to make in the circumstance.
That the facts giving rise to the present case and the fact which gave rise to the arbitration in dispute in Suit No. IAP/HB/3834 which the Claimants/Respondents are enforcing by Suit No. NICN/ABJ/58/2016 at the National Industrial Court sitting in Abuja, arose from the same transaction, issue or series of transactions or issues.
That the parties and their privies in Suit No. IAP/HB/3834 are the same as the parties in the instant action.
That the subject matter in Suit No. IAP/HB/3834 which border on the payment or non-payment of salaries is the same as the subject matter in the instant case.
The Defendant/Applicant in the instant suit is a non-juristic personality, thereby raising the issue of proper parties before this court.
The Honourable Court lacks jurisdiction to entertain the Plaintiff’s Complaint for being incompetent and an abuse of court process.
In support of the Preliminary Objection is an Affidavit of 17 paragraphs deposed to by one Shehu Ahmed (the Operations Manager) in the Officer of the Defendant/Applicant. Annexed to the Application are documents marked exhibits OOCL1 – OOCL3. The Defendant/Applicant equally supported the Notice of Preliminary Objection with a Written Address wherein they canvassed arguments in support of the application. In the said Written Address dated 7th September, 2016 but filed on the 18th day of January, 2017, the Defendant/Applicant distilled the following three (3) issues for the determination of this Court, to wit:
Whether having regard to Exhibits “OOCL2” and “OOCL3” annexed to the Affidavit in support of this Application, this suit is not incompetent for constituting an abuse of court process, estoppel per rem judicata and/or issue estoppel.
Whether the instant suit is not incompetent for being improperly constituted.
If the answer to Issues Nos. 1 and 2 are in the affirmative, whether the Claimants/Respondents’ suit is not liable to be struck out/dismissed.
While arguing Issue one (1), learned counsel for the Defendant/Applicant posited that by Exhibits OOCL2 and OOCL3 annexed to the Application, and paragraphs 4 – 16 of the supporting affidavit, this suit is incompetent for being an abuse of court process, res judicata and/or issue estoppel.
It was further submitted by the Defendant/Applicant that the instant suit as presently constituted is an abuse of court process because the Claimants/Respondents through their representative, Petroleum and Natural Gas Senior Staff Association (PENGASSAN), prosecuted Suit No. IAP/HB/3847: Petroleum and Natural Gas Senior Staff Association (PENGASSAN) V. Oil Offshore Combinations Limited (OOCL), before the Industrial Arbitration Panel which made an award in favour of the Claimants/Respondents dated 18th July, 2013; and the said Petroleum and Natural Gas Senior Staff Association (PENGASSAN) has since initiated an action by way of Motion dated 17th February, 2016 (exhibit OOCL2) before the National Industrial Court in Abuja to enforce the award on behalf of the Claimants and 21 others.
That the Claimants/Respondents herein are beneficiaries of the said Arbitral Award because they are members of the Petroleum and Natural Gas Senior Staff Association (PENGASSAN) who gave their consent to the association to pursue the payment of their salaries as averred by the Claimants/Respondents themselves in paragraphs 1, 11, 12, 13 and 16 of the Statement of Facts as well as paragraphs 2, 12, 13, 15 and 16 of the Claimants’ Witness Statement on Oath filed in this suit.
It was further submitted that, a party in law means not only a person named in a suit but also one who is cognizant of the proceedings and has an interest in the subject matter of the suit; and that the Claimants/Respondents are privies in Suit No. IAP/HB/3847 and by extension parties to the instant suit. See Sani V. President, F.R.N. (2010) 8 NWLR (Pt. 1198) 153 at 176 – 177 para. D, Nwosu V. Udeaja (1990) 1 N.W.L.R. (Pt. 125) 188 at 220 and Coker V. Sanyaolu (1976) 9 – 10 SC 203.
On the definition of “abuse of court process” the court was referred to the case of Okorocha V. P.D.P. (2014) 7 N.W.L.R. (Pt. 1406) 213 at 279 – 280 paras H – A and 290 paras B – D where the Supreme Court per Ogunbiyi JSC held as follows:
“The term abuse of court process connotes simply the misuse of the court’s process and it includes acts which otherwise interfere with the course of justice. Clearly, the acts include:
Instituting a frivolous action without reasonable ground, or
Instituting multiple actions;
Being on a frolic of forum shopping; that is, seeking a favourable court to entertain a matter.
The court has discretionary jurisdiction to undo what has been done by a party in abuse of the court process.” See also Dingyadi V. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 154 at 221 paras D – G; Yakubu V. A. S. Co. Ltd. (2010) 2 NWLR (Pt. 1177) 167 at 179 paras E – H and Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225 at 260 – 261 paras G – A.
It was further submitted by the learned Defendant/Applicant’s counsel that, this suit cannot be maintained by the Claimants/Respondents seeking for similar reliefs with a suit that has been determined in their favour regarding the same parties, issues and subject matter. That for a party to successfully plead res judicata the following must be established:
That the parties or their privies, as the case may be are the same in the present case as in the previous case;
That the issues and the subject matter are the same in the previous case or suit as in the present suit;
That the adjudication in the previous case was given by a court of competent jurisdiction;
That the previous decision finally decided the issues between the parties.
It was therefore submitted that the issues and parties in respect of the decision in Suit No. IAP/HB/3847 which the Claimants/Respondents are enforcing by an application in Suit No. NICN/ABJ/58/2016 at the National Industrial Court sitting in Abuja and the issues and subject matter of this instant suit being the same, it operates as res judicata and they cannot relitigate a case that has been completely and conclusively determined by a court of competent jurisdiction. See Dakolo V. Rewane-Dakolo (2011) 16 NWLR (Pt. 1272) 22 at 54 paras D – E; Ayuba V. Yonrin (2011) 10 NWLR (Pt. 1254) 135 at 159 – 160 paras G – B and Igbeke V. Okadigbo (2013) 12 NWLR (Pt. 1368) 225 at 250 – 251 paras G – B.
It was finally submitted on this Issue relying on the case of Ajiboye V. Ishola (2006) 13 NWLR (Pt. 998) 628 at 645 paras A – C that, the present suit is caught up by the doctrine of issue estoppel because the issues and or questions in controversy in this present suit had already been resolved and determined in dispute No. IAP/HB/3847. See also the case of Anwoyi V. Shodeke (2006) 13 NWLR (Pt. 996) 34 at 45 paras A – C.
The learned counsel for the Defendant/Applicant therefore urged the court to resolve Issue one (1) in favour of the Defendant/Applicant.
On Issue two (2) it was submitted by the Defendant/Applicant’s counsel that, the Defendant/Applicant is not a juristic person known to law and therefore ought not to be made a party to this suit. That “Oil Offshore Combination Limited” as sued is not a juristic person that can sue and be sued in law referring the court to exhibit OOCL1 which is a copy of the Certificate of Incorporation of “Oil Offshore Combinations Limited”. That the law recognizes two categories of persons that can sue and be sued and these are natural persons and artificial persons; and in the case of artificial persons they must be given juristic personality by law. See Njoku V. U.A.C. Foods (1999) 12 N.W.L.R. (Pt. 632) 557 at 564 where Galadima J.C.A (as he then was) held as follows:
“It is well settled by a long line of cases that a non juristic person cannot sue or be sued. The “United African Company Foods” is not a juristic person as such it cannot be sued. It will be wrong as well to substitute it by a juristic person in the guise of a misnomer.” See also Fawehinmi V. N.B.A. (No. 2) (1989) 2 N.W.L.R. (Pt. 105) 558.
It was finally argued on this Issue that, since one of the factors for determining the jurisdiction of a court of law is that proper parties must be before the court and the name of the Defendant/Applicant having not been correctly stated makes the originating processes incompetent. See Muscaconi Ltd. V. Aspirall (2013) 14 NWLR (Pt. 1375) 435 at 459 paras F – H.
On Issue three (3) it was submitted by the learned counsel for the Defendant/Applicant that, once a court of law is satisfied that any proceedings before it is an abuse of process it has the power and duty to dismiss it. On this argument the court was referred to the case of C.O.M. Inc. V. Cobham (2006) 15 NWLR (Pt. 1002) 283 at 303, paras E – F where it was held that, “Once a court is satisfied that any proceedings before it is an abuse of process it has the power, indeed the duty, to dismiss it and not merely to strike it out.”
The defendant/Applicant’s counsel therefore urged the court to either strike out or dismiss this suit for being incompetent and the court lacks the jurisdiction to entertain same.
In opposition to the Notice of Preliminary Objection, the Claimants/Respondents filed 16 paragraphs Counter Affidavit deposed to by Tekeopuye Davies, the 1st Claimant in this suit on 16th January, 2018. Annexed to the Counter Affidavit are documents marked as exhibits A – E. The Claimants/Respondents also filed a Written Address dated 15th January, 2018 and filed on 16th January, 2018. These processes were deemed properly filed and served on 30th January, 2018.
Learned counsel for the Claimants/Respondents submitted a lone Issue for the determination of this court, to wit:
Whether from the facts and surrounding circumstances of this matter this suit could rightly be said to be incompetent for being improperly constituted and as an abuse of court process?
While arguing this sole Issue, learned counsel to the Claimants/Respondents submitted that, the omission of the letter “s” from the name of the Defendant/Applicant “Oil Offshore Combination Limited” instead of “Oil Offshore Combinations Limited” is an innocuous mistake or typographic omission which does not in any way remove the toga of incorporation and juristic personality on the Defendant/Applicant. On this submission the learned counsel referred the court to the case of Federal College of Education (Technical) Gusau & Anor. V. Umar Abubakar (2013) All FWLR (Pt. 709) 1130 at 1132, ratio 2, where the Court of Appeal held thus:
“In the instant case, the mere inclusion of FCE (T) rather than FCE (T) Gusau, Sokoto State in the name of the 1st appellant does not render the 1st appellant a non-juristic person. This is a mere mistake in the name of the 1st appellant as the parties were not misled in anyway.”
That in the instant case the Defendant/Applicant has not shown in any way how it was misled by the said innocuous mistake or omission of the letter “s” from the word “Combinations” in its name as to rob it of its juristic personality. Leaned counsel urged the court to discountenance the submissions of the Defendant/Applicant’s counsel in this regard and hold that the Defendant/Applicant sued herein is a juristic person and the suit against it is properly constituted.
On the submission of the Defendant/Applicant’s counsel that the suit is an abuse of court process, the learned counsel for the Claimants/Respondents argued that though the concept of what amounts to abuse of court process has been held in litany of cases to be imprecise but few indices are key in determining whether or not an act is an abuse of court process. The court was referred to the Supreme Court decision in the case of R-Benkay Nigeria Limited V. Cadbury Nigeria Plc (2012) All FWLR (Pt. 631) 1450 at 1452 ratio 2 where it was held as follows, “To constitute abuse of court process, the multiplicity of suits must have been instituted by one person against his opponent on the same set of facts. Whether a suit constitutes abuse of court process is a matter of the facts of each case.” See also Federal Airports Authority of Nigeria V. Sylvester C. Nwoye (2014) ALL FWLR (Pt. 719) 1110 at 1115 ratio 5.
Learned counsel argued that there is no multiplicity of suits by the same parties and on the same subject matter. The court was referred to paragraphs 4, 8, 9 and 12 of the Counter-Affidavit to the effect that, there was a trade dispute in Suit No. IAP/HB/3847 between PENGASSAN and Oil Offshore Combinations Limited (OOCL) which was determined and concluded before the Industrial Arbitration Panel with an award in favour of the workers of PENGASSAN. That the said award was duly communicated to the parties through the Notice of Award dated 19th July, 2013 from the Office of the Federal Ministry of Labour and Productivity. That with the communication of the notice of award, the said trade dispute proceedings had been concluded and could not be said to be subsisting as to amount to multiplicity of suit with the instant suit.
Learned Claimants/Respondents’ counsel further submitted that, it was the failure of PENGASSAN to explore means of ensuring the enforcement of the award for about two (2) years that necessitated the Claimants/Respondents to file this suit for the declaration of their rights to their salaries and other entitlements and for the enforcement of the same against the defendant/applicant herein on 26th November, 2015.
That it was after the instant suit was filed on 26th November, 2015, that Suit No. NICN/ABJ/58/2016 was later filed on the 17th February, 2016 at Abuja Judicial Division of this Honourable Court specifically seeking or praying for leave to enforce an award of the Tribunal of the Industrial Arbitration Panel (IAP) dated the 18th July, 2013. That this suit predated Suit No. NICN/ABJ/58/2016 and the reliefs are quite different and not the same as to amount to an abuse of court process.
It was submitted that a suit for claims are for declarations of rights and entitlements as well as for order enforcing those rights and entitlements cannot be construed or interpreted to mean the same thing with a suit wherein the sole relief sought is for an order granting leave to do something even if they are based on similar facts and circumstances.
The learned Claimants/Respondents’ counsel finally urged the court to find and hold that from the facts and surrounding circumstances of this case, it is neither incompetent nor constitute an abuse of court process and to dismiss the Objection with cost.
It is instructive to state that the Defendant/Applicant also filed a Further Affidavit of 12 paragraphs dated and filed on 24th January, 2018 deposed to by one Shehu Ahmed (Operations Manager) in the Office of the Defendant/Applicant. Annexed to the Further Affidavit are documents marked exhibits OOCL3 and OOCL4. Also filed along with the Further Affidavit is a Reply Written Address dated 23rd January, 2018 and filed on 24th January, 2018.
It was submitted in the said Reply that exhibits A, B, C, and D attached to the Claimants/Respondents’ Counter-Affidavit are immaterial and irrelevant to the issue at hand because the Claimants have clearly admitted in paragraph 4 of their Counter-Affidavit to be beneficiaries of the decision of the Industrial Arbitration Panel dated 18th July, 2013 in Suit No. IAP/HB/3847 between Petroleum and Natural Gas Senior Staff Association (PENGASSAN) V. Oil Offshore Combinations Limited (OOCL) relied upon by the Claimants in the instant suit which has also been enforced on their behalf by the subsequent judgment of this court in Suit No: NICN/ABJ/58/2016. See Adebiyi V. Umar (2012) 9 NWLR (Pt. 1305) 279 at 296 paras F – G; Ajibulu V. Ajayi (2014) 2 NWLR (Pt. 1392) 483 at 497 para E; Bunge V. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573 at 599-600 paras B-C; Ologun V. Fatayo (2013) 1 NWLR (Pt. 1335) 303 at 319-320 paras H-B.
It was further submitted that, the Defendant/Applicant has shown by way of exhibits OOCL3 and OOCL4 that there is indeed a pending appeal at the Court of Appeal and section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is clear on the person or institution authorized to hear and determine appeals from the decisions of National Industrial Court. That once an appeal has been filed and entered before the Court of Appeal, the Court of Appeal becomes the dominis litis in respect of the matter and no other court or tribunal below the Court of Appeal can exercise jurisdiction on it thereafter; the Court of Appeal is seised of the matter. See Denton-West V. Muoma (2008) 6 NWLR (Pt. 1083) 418 at 439; Muhammed V. Olawunmi (1993) 5 SCNJ 64 at 112 – 113; Ezeokafor V. Ezeilo (1999) 9 NWLR (Pt. 619) 513 at 524 paras E – F; Akinyemi V. Soyanwo (2006) 13 NWLR (Pt. 998) 496 at 514 – 515 and Order 4 Rules 10 and 11 of the Court of Appeal Rules 2016.
It was further argued that, the contention of the Claimants/Respondents that the institution of Suit No. NICN/ABJ/58/2016 which was determined by this court was not done with their concurrence is only an afterthought and that the Claimants/Respondents are only trying to sway the court by sentiments. Sheriff V. PDP (2017) 14 NWLR (Pt. 1585) 212 at 295-296, paras B – A and Grosvenor Casinos Ltd V. Halaoui (2009) 10 NWLR (Pt. 1149) 309 at 351 paras D – C.
On the name of the Defendant/Applicant as sued in this suit, learned counsel submitted that, even where a wrong name of the defendant used by the Claimant in the originating processes is merely a misnomer, the legal effect is that same can only be cured by way of an amendment referring the court to the case of Federal College of Education (Technical) Gusau V. Umar Abubakar (2013) LPELR-22203 (CA) at 24 para C where it was held that, “A misnomer will arise where a party is sued in the wrong name and the courts will usually grant amendments to correct the mistake even on appeal.” That since there is no application before the court for amendment as envisaged under the law, the appropriate sanction is to strike out the matter.
The learned counsel for the Defendant/Applicant therefore urged the court to either strike out the matter or dismiss same for want of jurisdiction to entertain the suit for being incompetent.
COURT’S DECISION
I have carefully considered the processes, arguments and submissions as well as adumbrations of counsel on both sides and the issues for determination in this application to my mind are as follows:
Whether the Defendant/Applicant is a juristic personality and properly sued in this suit.
Whether the Award of the Industrial Arbitration Panel (IAP) in suit No. IAP/HB/3847 between Petroleum and Natural Gas Senior Staff Association (PENGASSAN) V. Oil Offshore Combinations Limited (OOCL) constitutes an estoppel per rem judicatam to bar the Claimants from instituting the present suit.
The question I am being called upon to determine on Issue one (1) is whether the omission of letter “s” from the word “combinations” in the name of the Defendant/Applicant is so fundamental as to affect the juristic personality of the Defendant/Applicant and by extension the competence of this suit and of the court to entertain same against the Defendant/Applicant.
Having carefully looked at the Defendant/Applicant’s Certificate of Incorporation dated 13th September, 1991 with RC No. 173,278 (exhibit 00CL1 attached to the Defendant/Applicant’s Notice of Preliminary Objection), it is clear that while the registered corporate name of the Defendant/Applicant is “OIL OFF-SHORE COMBINATIONS LIMITED” the Claimants/Respondents have sued “OIL OFFSHORE COMBINATION LIMITED” thereby omitting the letter “S” from the word “COMBINATIONS”.
The law is trite that an incorporated or registered company is invested by law legal entity with personality of its own and the best and conclusive means of proving such incorporation or registration is by the production of the company’s Certificate of Incorporation in court. See Nigerian National Petroleum Corporation V. Lutin Investments Ltd & 1 Or. (2006) LPELR-2024(SC).
Regarding whether or not this is a case of misnomer, the law is that a misnomer occurs where the right party is incorrectly named in the court process. This is different from a situation of mistake in the party’s identity which will amount to substituting one defendant for another.
In the instant case, it is not in doubt that the Claimants/Respondents were clear as to the identity of the Defendant/Applicant herein. They clearly knew the party they intended to sue particularly that they were employees of the Defendant/Applicant they had the clear intention of suing their employer. I am therefore of the view that, the omission of the letter “s” in the word “Combinations” in the name of the Defendant/Applicant is a mistake and a case of a misnomer that is capable of being cured by means of an amendment. I so find and hold.
In any case, if every mistake in the name of an Incorporated Company is to affect the juristic personality of the said company then the Defendant/Applicant would also have been guilty of the same omission in its corporate name. This is because while the Defendant/Applicant has filed processes in this court including the Notice of Appeal filed on 4th of November, 2016 indicating the name of the Defendant/Applicant as “OIL OFFSHORE COMBINATIONS LIMITED” the name of the Defendant/Applicant as reflected on the Certificate of Incorporation is “OIL OFF-SHORE COMBINATIONS LIMITED” with an hyphen between “OFF” and “SHORE” thereby hyphenating the two words.
The Defendant/Applicant relied heavily on the case of Njoku V. U.A.C. Foods (supra) in urging the court to hold that the Defendant/Applicant sued herein is not a legal personality and that this is not a case of a misnomer. I do not agree with learned counsel on this. The facts of this case and Njoku’s case are not the same. In Njoku’s case, Benjamin N. Njoku whose employment as a Senior Production Supervisor with United Africa Company Nigeria Plc was terminated on the 30th of October, 1995 sued United African Company Foods which was clearly not a juristic person. The court dismissed the suit on the ground that while the proposed Defendant was United Africa Company Nigeria Plc, the Writ was issued against United African Company Foods. The court rightly held that United African Company Foods was not a juristic person and cannot be the same as United Africa Company Nigeria Plc; hence it was held not to be a case of a misnomer.
A similar scenario as in this case played out in the case of So Safe Table Water Technologies Ltd. V. Obafunmilayo Ayinoluwa & 1 Or. (2013) LPELR-22034(CA), where the Claimant sued “SO SAFE TABLE WATER” instead of the company incorporated name of “SO SAFE TABLE WATER TECHNOLOGIES LTD” and the Court of Appeal held per Chinwe Eugenia Iyizoba, J.C.A. thus on the import of a misnomer:
“The intention was to sue a juristic person “So Safe Water Technologies Ltd” but as a result of human error and the fact that that(sic) the company is generally referred to as “So Safe Table Water,” the action was instituted in that wrong name. Whether an error in the name sought to be amended is a misnomer or not is a question of fact and depends on the attitude of a reasonable man confronted with the Writ in the circumstance of the case. Given that the Respondent is in business circle generally referred to as ‘So Safe Table Water’, it would have no doubt on being confronted with the Writ that it is the one sued. It was a clear case of misnomer. The issue whether a non juristic person can be substituted by a juristic person in the circumstances as hereunder was as submitted by the Respondent put to rest by the Supreme Court in the case of Maersk V. Addide Investment Ltd (2002) 4 SC (Pt. 11) page 157 at 197. The relevant quotation has been reproduced above. For the avoidance of doubt, I once again reproduce it. “…… However that a person sued is not a legal person does not preclude the Court from amending the title of the action to show the correct name of the party sued if it is shown to the satisfaction of the court that it was a case of misnomer, such power of amendment is covered by the provisions of order 32 and such like enactments. The exercise of such power of amendment has been acknowledged in several cases.”
It is therefore the court’s decision on this issue that the omission of the letter ‘s’ from the word ‘Combinations’ in the name of the Defendant/Applicant is a misnomer capable of being cured by way of an amendment. Issue one (1) is therefore resolved against the Defendant/Applicant.
On Issue two (2), the learned Defendant/Applicant’s counsel A. Amadi argued that the Claimants/Respondents through their representative, the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) duly instituted and prosecuted Suit No. IAP/HB/3847 between Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) V. Oil Offshore Combinations Limited (OOCL) before the Industrial Arbitration Panel (IAP) and an Award was given which was confirmed by the Hon. Minister of Labour and Productivity thereby constituting res judicata and making the instant suit an abuse of court process. According to the learned Defendant/Applicant’s counsel, the Claimants through their Trade Union (PENGASSAN) have taken steps to enforce the said Award of the Industrial Arbitration Panel by filing Suit No. NICN/ABJ/58/2016 seeking to enforce the said Award, and the judgment of this court in the said suit is now subject of an appeal before the Court of Appeal Abuja Judicial Division in Appeal No. CA/A/83/2017.
The Claimants/Respondents’ counsel, O. A. Nwachukwu on the other hand countered by submitting that there is no multiplicity of suits between the parties as Suit No. IAP/HB/3847 between Petroleum and Natural Gas Senior Staff Association (PENGASSAN) V. Oil Offshore Combinations Limited (OOCL) was duly determined by the Industrial Arbitration Panel (IAP) with an Award in favour of the members of the Trade Union which was communicated to the parties through the Notice of Award dated 19th July, 2013 from the Office of the Federal Ministry of Labour and Productivity. That with the communication of the Notice of Award to the parties, the trade dispute proceedings in Suit No. IAP/HB/3847 between Petroleum and Natural Gas Senior Staff Association (PENGASSAN) V. Oil Offshore Combinations Limited (OOCL) had been litigated to conclusion and is no longer subsisting as to amount to multiplicity of suits thereby making this suit an abuse of court process. That even Suit No. NICN/ABJ/58/2016 which was filed after the commencement of this suit has also been concluded.
In determining this Issue it is pertinent to first and foremost consider what estoppel per rem judicata is as well as the elements of the plea in order to determine whether from the facts and circumstances of this suit the said plea is applicable.
It is one of the cardinal principles of common law and every adjudicatory proceeding that public interest requires an end to litigation. This is expressed in the latin maxim interest reipublicae ut sit finis litium. It is therefore on this premise that the plea of estoppel per rem judicatam becomes an important plea in litigations whereby any cause of action that has been litigated upon and decided by a court of competent jurisdiction cannot be the subject of subsequent litigation between the same parties and subject matter. The plea forestalls protracted litigation in courts of law.
In the case of Mojeed Suara Yusuf V. Madam Idiatu Adegoke & 1 Anor. (2007) 30 NSCQR (Part 1) 269 at 298 – 299 paragraphs H – C, the apex court per P. O. Aderemi, J.S.C. held as follows on the meaning of res judicata:
“Let me quickly make a pronouncement on the terms “RES JUDICATA”, it has now become well entrenched in our civil jurisprudence that once a dispute or matter has been finally and judicially pronounced upon or determined by a court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to relitigate such matter in court. A judicial decision properly handed down is conclusive until reversed by a superior court and its veracity is not open to a challenge nor can it be contradicted. The term derives its force from the good public policy which says that there must be an end to litigation. The maxim is INTEREST REIPUBLICAE UT SIT FINIS LITIUM.”
See also Nigeria Civil Service Union V. Association of Senior Civil Servants of Nigeria (2012) 26 N.L.L.R. (Part 73) 94 at 107 paras. B – D. and P. B. Olatunde & Co. (Nig.) Ltd. & 1 Anor. V. National Bank of Nigeria Ltd. (1995) 3 N.W.L.R. (Part 385) 550 at 562 para. B.
May I at this point reiterate the position of the law which has for a long period of time been settled that for a plea of res judicata to succeed it must be shown that not only the parties are the same but also the subject matter and the issues in the previous case must be the same with those in the instant case in which the plea is raised. The previous case must not only be conclusive but must have also made an order or granted a relief which is certain and capable of being enforced.
In the case of John Bankole & 3 Ors. V. Mojidi Pelu & 3 Ors. (1991) 8 N.W.L.R. (Part 211) 523 at 543 paras. A – B, the apex court put it succinctly thus:
“Did Exhibit J create an estoppel against the appellants in this case? It is trite law that to constitute estoppel against the appellants the parties in Exhibit J – Alimosho Customary Court Suit No. 47/69- and in the present action (Lagos High Court Suit No. IK/21/67) must be the same, the cause of action or issue in both actions must be the same and must have been litigated to finality vide Iyowuawi V. Iyowuawi (1987) 4 N.W.L.R. (Pt. 63) 61. “parties” in this context also include the “privies” vide Fadiora V. Gbadebo (supra); Bamishebi V. Faleye (1987) 2 N.W.L.R. (Pt. 54) 51; Udo V. Obot (1989) 1 N.W.L.R. (Pt. 95) 59 at 61.”
These conditions required for a successful plea of res judicata were reiterated by the Supreme Court in the case of Mr. Akinfela Frank Cole V. Mr. Adim Jibunoh & 2 Ors. (2016) 4 N.W.L.R. (Part 1503) 499 at 539 paras. A – D where the Supreme Court per Sanusi J.S.C. held as follows:
“Having analysed the similarity of the two suits, I am of the firm view, that this is a clear example of a case in which doctrine of res judicata applies. For purpose of clarity, for the defence of res judicata to be successfully raised, the following conditions must co-exist or be met, namely:
That the parties in the previous action and the present one must be the same.
That the subject matter of litigation in the previous action must be the same as the one in the present or new action.
The claim in the previous action must be the same as the one in the present action.
The judgment in the previous case must be given by a court of competent jurisdiction; and
The decision must be final or it must have finally disposed of the rights of the parties.See Ihenacho Nwaneri V. Oriuwa & Ors (1959) 4 FSC 132 or (1959) SCNLR 316; William Ude & Ors V. Josiah Agu & Ors. (1961) All NLR 65, (1961) 1 SCNLR 98; Etiti Alh. Latifu Ajuwon & Ors. V. Madam Alimotu Adeoti (1990) 2 NWLR (Pt. 132) 271, (1990) 3 SC (III) 76.”
See also the following cases:
Professor Folarin Shyllon V. Mrs. Judith Asein (1994) 6 N.W.L.R. (Part 353) 670 at 698 paragraphs B – D.
Ex Captain Charles Ekeagwu V. The Nigerian Army & Anor. (2006) 11 N.W.L.R. (Part 991) 382 at 394 – 395 paras. H – C.
Ezewuihe Ikoku & 3 Ors. V. Reuben Ekeukwu & 3 Ors. (1995) 7 N.W.L.R. (Part 410) 637 at 652 paras. C – F.
Registered Trustees, National Association of Community Health Practitioners of Nigeria V. The Medical and Health Workers & 3 Ors. (2016) 64 N.L.L.R. (Part 228) 626 at 646 paras. F – A.
Having considered the conditions required for a successful plea of res judicata, it is pertinent at this juncture to embark on the exercise of analyzing the previous case in Suit. No. IAP/HB/3847 vis-à-vis the instant suit in order to ascertain whether or not those conditions have co-existed for a successful plea of res judicata.
On the condition that the parties in the previous suit and the current case must be the same, it is clear from exhibit “OOCL2” the Originating Process filed before the Industrial Arbitration Panel (IAP) that, Suit No. IAP/HB/3847 was between Petroleum and Natural Gas Senior Staff Association (PENGASSAN) V. Oil Offshore Combinations Limited (OOCL). The First Party in the suit (PENGASSAN) had sued the Defendant/Applicant herein in a representative capacity on behalf of the members of the Trade Union who are employees of the Defendant/Applicant. This was clearly captured by the First Party (PENGASSAN) in paragraphs 1 and 2 of the Memorandum of the First Party (the originating process) exhibit OOCL2 as follows:
“The FIRST PARTY is a fully registered trade union under the Trade Union Act, Cap T8 Laws of the Federation of Nigeria (LFN) 1990 and its amendments to organize and cater for the interests of the members in the union cadre of employment in the chemical, footwear, rubber, leather and non-metalic products industries throughout Nigeria.
The SECOND PARTY is a company duly registered under the laws of Nigeria carrying on business in the petroleum and natural gas sector of the Nigerian economy and an employer of 34 of the First Party’s members.”
In order to ascertain whether or not the claimants herein are among the said 34 members of the Trade Union (PENGASSAN), a perusal of paragraph 18 of Exhibit OOCL2 will indicate that while the 1st Claimant was listed as number 7 on the list, the 2nd Claimant was listed as number 10 on the list. It is instructive to add that, throughout the trial of the matter before the Industrial Arbitration Panel (IAP) the Claimants herein did not object to their being represented in the suit by their Trade Union and infact wrote exhibits “B” and “C” through the 1st Claimant’s solicitors Okey Anthony Nwachukwu & Co. addressed to the Hon. Minister, Federal Ministry of Labour and Productivity requesting the Hon. Minister to expedite actions in gazetting the Award of the Industrial Arbitration Panel (IAP) to enable them “pursue its enforcement at National Industrial Court as relates to our client’s interest and entitlements as an affected member of the Union (PENGASSAN) who has been suffering victimization and deprivations from his employer till date.”
It is not in doubt therefore that, the Claimants herein were adequately represented in the previous suit before the IAP by their trade union (PENGASSAN). This fact the Claimants themselves have not denied; rather their argument which I am uncomfortable with is that they had to institute this suit because their trade union (PENGASSAN) was reluctant and not desirous of taking steps to enforce the Award of the IAP.
It is therefore my humble view that the Claimants herein being privies of PENGASSAN were adequately represented by the trade union in the previous case before the Industrial Arbitration Panel (IAP) and their interests have been adequately taken care of in the said suit. The instant suit is clearly not a post judgment proceeding aimed at enforcing the Award of the IAP but rather a fresh suit seeking to enforce alleged rights of the Claimants that have been decided upon by the IAP. In any case, the apprehension of the Claimants that the trade union was not desirous of taking steps to enforce the said Award of the AIP should have been rested with the institution of Suit No. NICN/ABJ/58/2016 between Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) V. Oil Offshore Combinations Limited (OOCL) (exhibit OOCL3) being Motion on Notice seeking for leave to enforce the Award of the IAP dated 18th July, 2013. Suffice it to state that this application was argued by the parties and this court in a considered Judgment vide exhibit E annexed to the Claimants’ Counter-Affidavit delivered on 31st October, 2016 Coram: Hon. Justice B. B. Kanyip, PhD (Presiding Judge), Hon. Justice M. N. Esowe (Judge) and Hon. Justice P. O. Lifu (Judge) granted the reliefs sought i. e. leave to the First Party/Award Obligee/Applicant to enforce against the Second Party/Award Obligor/Respondent the Award of the Industrial Arbitration Tribunal dated 13th July, 2013. Not being satisfied with the said decision of this court, the Respondent has appealed to the Court of Appeal, Abuja Division vide Notice of Appeal dated 2nd November, 2016 in Appeal no. CA/A/ 83/2017.
In the case of Alhaji Tiamiyu Eleburuike V. Alhaji Rahim Akano Tawa (2010) LPELR-4098(CA) the Court of Appeal per Sotonye Denton-West J.C.A. defined “privy” as follows:
“The concise law dictionary (Sixth edition) page 264 defined privy as, “One who is a party to or had a share or interest in something.” While the blacks law dictionary (eight editions) defined a privy as- “a person having a legal interest of privity in any action, matter, or property, a person who is in privity with another-privies in law such as- the term also appears to the content of litigation, in this sense, it includes someone who controls a law suit though not a party to it, someone whose interests are represented by a party to the law suit.” In the case of Iyayi Vs. Eyigebe (1987) 7 SCNJ 148 at 152, privy was held to include all those who are privy to the parties in blood or title or interest, and estoppel per rem judicata operates for, or against, not only parties but also those privies.”
On the second and third conditions of the subject matter of litigation and claims in the previous action being the same as in the instant suit, it is important to examine the claims and reliefs in the two suits to determine whether or not they are the same.
The reliefs claimed in Exhibit OOCL2 (the Memorandum of the First Party) filed before the Industrial Arbitration Panel (IAP) as captured in paragraph 33 are reproduced hereunder:
“33 THEREFORE the FIRST PARTY has come to pray this Honourable Tribunal for:
AN ORDER that SECOND PARTY shall forthwith pay to the affected 22 members of he(sic) FIRST PARTY all salaries and emoluments due, payment of which the SECOND PARTY had stopped on the ground of a purported standby, which payment shall be made with effect from the date of the stoppage till the date of the conclusion of this arbitral process and thereafter until the employment of the affected 22 members shall duly and properly cease.
AN ORDER that the SECOND PARTY shall forthwith engage with the FIRST PARTY in dialogue for the sake of industrial peace and harmony, for the purpose of resolving all issues pertaining to the welfare of the members of the FIRST PARTY in the employment and under the extant labour laws and for the advancing of vital industrial peace and harmony.”
It is not in doubt that these reliefs were awarded by the Industrial Arbitration Panel (IAP) and duly confirmed and gazetted by the Hon. Minister of Labour and Productivity vide Federal Republic of Nigeria Official Gazette No. 115 Volume 101 of 14th November, 2014.
The reliefs being claimed by the Claimants in this suit as captured in paragraph 17 of the Statement of Facts on the other hand are as reproduced below:
“A declaration that the claimants are 2 of the 23 members of Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) Branch in the defendant company that their salaries and other emoluments or entitlements were stopped by the defendant on the basis of a unilateral and illegal declaration of a purported stand-by from January, 2011 to date.
A declaration that the claimants’ employments with the defendant were never and have never been terminated or determined till date but rather the claimants salaries and other emoluments or entitlements due them were stopped by the defendant on the basis of a unilateral and illegal declaration of a purported stand-by from January, 2011 to date.
A declaration that it is an unfair labour practice for the defendant to stopped(sic) the payment of the claimants salaries and other emoluments or entitlements due them on the basis of a unilateral and illegal declaration of a purported stand-by from January, 2011 to date as such the claimants are entitled to be paid their salaries and other emoluments or entitlements due them from the month January, 2011 to the date of final determination of this suit.
A declaration that by virtue of the Industrial Arbitration Panel Award made in favour of Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN), of which the claimants herein are members, against the defendant and which Award has become binding upon the Minister of Labour and Productivity publishing in the Federal Government of Nigeria Gazette No. 135, Volume 101 of 24th November, 2014 a notice confirming the same, the claimants who are part of the 23 members of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) affected by the Award have the right to apply for its interpretation and enforcement where their Union has failed, neglected, ignored and or refused to do so on their behalf.
An order that the defendant shall forthwith pay to the claimants their respective salaries and other emoluments or entitlements due them from the month January, 2011 to the date of final determination of this suit.
The cost of this suit.”
It is therefore clear from the reliefs reproduced above that the main grievances in the two suits have to do with the stoppage of the salaries and emoluments of the 23 employees of the Defendant/Applicant on the ground of the purported unilateral declaration of stand-by. It is therefore my humble view that the subject matter of litigation as well as the claims in the previous suit are the same as the ones in the instant suit.
On the competency of the jurisdiction of the Industrial Arbitration Panel, there is no doubt that it was properly constituted and the Award was given by a tribunal of competent jurisdiction. In any case, there was never an objection to the jurisdiction of the tribunal by either of the parties.
On the condition that the previous judgment must have disposed of the rights of the parties finally and conclusively, it is pertinent to consider the provisions of the Trade Disputes Act Cap. T8 LFN, 2004 to ascertain the jurisdictional scope of the Industrial Arbitration Panel (IAP).
Section 13 of the Trade Disputes Act provides as follows:
“13 (1) An arbitration tribunal constituted under section 9 of this Act-
Shall make its award within twenty-one days of its constitution or such longer period as the minister may in any particular case allow; and
On making its award shall forthwith send a copy thereof to the minister, and shall not communicate the award to the parties affected.
(2) Subject to section (3) of this section, on receipt of a copy of the award of the tribunal the minister shall immediately cause to be given to the parties or their representatives, and to be given to the parties of their representatives, and to be published in such other manner (if any) as he thinks fit, a notice-
(a) setting out the awards;
(b) specifying the time (not being more than seven days from the publication of the notice) within which the manner in which notice of objection to the award may be given to the Minister by or on behalf of either party to the dispute; and
(c) stating that, except where notice of objection to the award is given within the time and manner so specified by one or both of the parties, the award will be confirmed by the minister.
(3) Where on the receipt of an award of the tribunal the minister considers it desirable to do so he may refer the award back to the tribunal for consideration and shall not exercise his power under subsection (2) of this section until the award has been reconsidered by the tribunal.
(4) If no notice of objection to the award of the tribunal is given to the minister within the time and in the manner specified in the notice under subsection (2) of this section, the Minister shall publish in the Federal Gazette a notice confirming the award and the award shall be binding on the employers and workers to whom it relates as from the date of the award (or such earlier or later date as may be specified in the award).”
From the provisions of the Trade Disputes Act reproduced above, it is clear that unless there is a notice of objection to an award of the Industrial Arbitration Panel (IAP) after notice of the said award has been communicated to the parties by the minister, the minister shall publish in the Federal Government Gazette notice of confirmation of the award and once that is done the Award becomes binding on both the employers and the employees. The Award of the Industrial Arbitration Panel in the instant case was duly communicated to the parties vide the letter of the Federal Ministry of Labour and Productivity dated 19th July, 2013 (exhibit A annexed to the Claimants/Respondents’ Counter-Affidavit) requesting for any objection to the Award to be lodged with the Honourable Minister of Labour and Productivity in writing within seven (7) days from the date of the notice. When there was no objection to the Award, the Honourable Minister published in the Federal Government Gazette a confirmation of the Award as required by law vide Official Gazette No. 115, Volume 101 of 14th November, 2014. It is therefore my considered opinion that with the publication of the Award in the Federal Republic of Nigeria Official Gazette, the Award has not only become binding on the parties but equally determined conclusively and finally the issues in contention between the parties as both the tribunal and the Minister would have by then become functus officio. No wonder section 14 (4) (5) and (6) criminalizes any disobedience to an Award of the tribunal by prescribing penalties for such non compliance with the Award. It will therefore seem that the only remedy for either party is to either approach this court for an interpretation of the Award and the decision of this court shall then be final in line with sections 15 and 21(1)(ii) of the Act, or appeal against the Award to this court in line with section 22 of the Act. See also section 7 (1) (C)(ii) (4) (5) and 8 of the National Industrial Court Act, 2006; section 254C(1)(j)(ii) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 3 (5) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.
This instant suit is neither an application for interpretation of the said AIP Award nor an appeal against the IAP Award. In any case, the Claimants’ Trade Union (PENGASSAN) had taken the right step as required by section 23 of the Trade Disputes Act by applying to this court for leave to enforce the said Award which application had since been granted though now subject of an appeal before the Court of Appeal.
It is the law that in order to determine whether a judgment is final or interlocutory, the deciding factor is whether the rights of the parties have been finally and conclusively decided and disposed of by the judgment. In the case of Nnah George Onyeabuchi V. Independent National Electoral Commission (INEC) & 4 Ors. (2002) LPELR-2726(SC), the Supreme Court per E. O. Ayoola, J.S.C. held as follows on what determines the finality of a decision: “A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it.” See also the case of Chief Olisa Metuh v. Federal Republic of Nigeria & 1 Or. (2017) 4 N.W.L.R. (Part 1554) 108.
It is therefore my humble view that the Award of the Industrial Arbitration Panel (IAP) is a final decision of the tribunal having been confirmed by the Minister of Labour and Productivity and published in the Federal Republic of Nigeria Official Gazette as required by law. I so find and hold.
In the final analysis, I am of the view that based on the reasons advanced above and the authorities cited and relied upon, the instant suit instituted by the claimants herein is an abuse of court process meant to vex the Defendant/Applicant twice on the same issues already decided by the Industrial Arbitration Panel (IAP). This Issue is therefore resolved in favour of the Defendant/Applicant.
For the avoidance of doubt, it is the decision of this court that the Defendant/Applicant’s Notice of Preliminary Objection challenging the jurisdiction of this court to entertain this suit succeeds in part only to the extent that this suit is res judicata.
Consequently, the appropriate order to make in the circumstance is to dismiss the suit and same is hereby dismissed.
I make no order as to costs.
Ruling is entered accordingly.
Hon. Justice P. I. Hamman
Judge
