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IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE M. A. HAMZA - - - - JUDGE

DATE: 23RD JULY, 2024

SUIT NO: NICN/YEN/118/2016

BETWEEN:

1. UNEZE ADIELE

2. PRINCESS NWAOGBO

3. JUSTINA OBINWANNE
 AND

1. POWER HOLDINGS COMPANY OF NIGERIA

(AFAM POWER PLC)

2. ENGR. O.N. OBADEMI (MD/CEO)

3. L. OFURUM

Representation

Claimants/Respondents

for the Defendants/Applicants

Introduction

1. This is a Motion on Notice dated the 23rd day of October, 2023 by the Claimants/Applicants. It is
brought pursuant to Order 13 Rules 1 and 4; 17 Rule 1(1); 26 Rule 1(1) of the National Industrial Court
(Civil Procedure) Rules, 2017 and under the inherent powers of this Court praying whereof for the
following:

i. An Order of this Court joining K.L.C Nwankwo, Ene Victor, Beatrice Abagha as 4th, 5th
and 6th Claimants and as 4th Defendant in this suit for just determination of this action.

ii. An Order to amend the Statement of Claim to include their names and entitlements
against the Defendants/Respondents.

iii. And for such further order(s) that this Court may deem fit to you grant in the
circumstance.

2. The application is supported by a 13 paragraphs Affidavit deposed to by one Uneize Adiele (the 1st
Claimant), an annexure and accompany Written Address dated the same date. In opposing the
application, the Defendants/Respondents filed a Counter Affidavit of 17 paragraphs with two (2)
annexures and accompanied by a Written Address dated the 7th day of November, 2023. Parties have
adopted their respective addresses and made oral submissions.

Claimants/Applicants Submission

3. The Claimants formulated a lone issue for determination to wit:

“Whether the Court can in view of the circumstances of the case and in the interest of justice grant this
application.”
Counsel submitted that the Court has the power and discretion to grant this application for joinder be it
under the Law or Rules of this Court. In the circumstance, the test for joinder is whether the issue in the
suit will directly affect the Applicants or whether considering certain reliefs in the suit will affect his
pecuniary interest. See IGE VS FARINDE (1994) 7-8 SCNJ (Pt. 2) 284; YAKUBU VS GOVT OF KOGI STATE
(1995) SCNJ 122. He submitted further that an application of this nature will be granted where the
Applicant has shown his interest in the case and has rightly applied showing reasons why the parties
sought to join ought to be before the Court. See UMON BEVERAGES LTD VS PEPSI COLA INTERNATIONAL
LTD (1994) Pt. 330.

4. He posited that in the case of GREEN VS GREEN (1987) 3 NWLR (Pt. 61) 480, the Court held that a
proper party are those who though not interested in the Plaintiff’s claims but made parties for good
reason. Desirable parties on the other hand are the parties who have an interest or who may be affected
by the suit. It is to the extent of the position of the law in the foregoing that he argued that the person
sought to be joined in this suit fall into one and/or both of the two categories together. He submitted
also that there is the need to join the parties as it is a fundamental principle of law that all parties who
will be affected one way or the other in a litigation must be made parties. They are entitled to be heard
and must be heard before judgment is given by the Court, which may one way or the other affect them.
This is because it is against known principle of fair hearing for a party to be condemned in a judgment in
which he is not given the opportunity to lead evidence either in support or in defence of his right.

5. He also submitted that the Supreme Court Per A. G Karibi Whyte JSC in the case of AWONOYI &
ORS VS THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC (NIG) (2000) NSCQR 62, held
thus:

a. The purpose of joinder of parties in an action is to enable the Court to effectively and completely
adjudicate upon and settle all questions involved in the cause or matter.

b. It is elementary and fundamental principle that a judgment in personam is only binding on the
parties to lis. Accordingly, all parties who may be affected by the result of the litigation may be joined
either as Plaintiffs or Defendants.

6. He argued that a party would be joined as a co-claimant in an action where those persons sought
to be joined are not hostile or inconsistent with the issues or claims in the case - SPDC VS ADAMKWE
(2003) 12 NWLR (PT. 832) 543. Counsel finally urged the Court to exercise its discretion in granting this
application, joining the parties sought to be joined in this case in order to appropriately, effectually and
completely adjudicate upon and settle all questions involved in the case for the interest of justice.

Defendant's/Respondent's submission

7. The Learned Defense Counsel formulated two (2) issues for determination to wit:

a) Whether the Court can join parties whose accrual cause of action arose nine (9) years ago in
view of Statutes of Limitation.

b) Whether the Court can join a party who is not a necessary, proper or desirable.

On Issue No. 1, Counsel submitted that the parties sought to be joined had their cause of action accrued
nine (9) years ago in view of the provision of Statute of Limitation. Section 7(1)(a) Limitation Act, Cap
522 LFN, 1999 and Section 16 Limitation Law of River State Cap 80 Laws of River State, 2006 and whose
appointment were way back on the 31st day of March, 2014. He referred the Court to paragraphs 3(a),
4(a)(b)(1) and 4(d) of the Counter Affidavit and submitted that the aforesaid paragraphs are adequate
proof that the termination of appointment and payment of the severance benefits to the Applicants
giving rise to the end cause of action date back. Therefore, where the law prescribed a period for
instituting an action, it cannot be instituted after that period. See PHCN VS ALABI (2010)5 NWLR (PT.
1180) 65.

8. Counsel also submitted that if a Claimant sleeps, he cannot suddenly wake up. He is caught as in
the instance case by the Statute of Limitation. See MERCANTILE BANK (NIG) LTD VS FETECO (NIG) LTD
(1998) 3 NWLR (PT. 840); NASIR VS CIVIL SERVICE COMMISSION, KANO STATE (2010)6 NWLR (PT. 1190)
254.
On Issue No. 2, the Learned Counsel argued that the most pertinent question here is whether the party
sought to be joined is necessary, proper and desirable party. He answered in the negative regards being
had to the facts before the Court. By reference to paragraphs 9, 10, 11, 12, 13 and 14 of the Counter
Affidavit and place reliance on Exhibit ‘AX1’ and ‘BX1’ which clearly shows that the party sought to be
joined has no vested interest in the subject matter of the suit. See ADEGBENRO VS A.G FEDERATION
(1962) 2 SCNLR 30; OKAFOR VS NNAIFE (1973) SC 85; RE-MOGAJI (1962) 1 NWLR (Pt. 19) 759.

9. He contended that this Court should not join a party who has no interest whatsoever in the suit
based on the following reasons:

i. The party sought to be joined was not in existence at the time of institution of this suits in 2016.

ii. It is a condition precedent of the sale of power Holding Company of Nigeria (PHCN) (Afam Power Plc)
that the liabilities inclusive of instituting/pending cases would not be inherited nor transferred to the
new buyer, in this regard Tran Afam Power Limited but would remain with the seller – Bureau of Public
Enterprises. Consequently, he urged the Court to invoke the provision of Order 13 Rule 62 of the
National industrial Court of Nigeria (Civil Procedure) Rules, 2017 which states:

“The Court or Judge in Chambers may however make such order as may appear just to prevent any
Defendant from being required to attend any proceedings in which he may have no interest.”

See O. K. CONTACT PAINT VS PROGRESS BANK (1995)5 NWLR (PT. 604) 631.

10. The Learned Counsel submitted also that in determining whether joinder should be granted the
Court must ask the following questions:

a) Is the cause liable to be defeated by the non-joineder?

b) Is it possible to adjudicate on the case unless the 4th party is joined as a Defendant? That is to say, is
the party sought to be joined as 4th Defendant a party whose presence before the Court as a Defendant
will be necessary in order to enable the Court to effectually and completely adjudicate or settle all
questions involved in the matter. See ANYANWOKO VS OKOYE (2010) 5 NWLR (PT. 1188) 497; A.G
FEDERATION VS A.G ABIA (2011)11 NWLR (PT. 725) 689. Therefore, it is improper to join as a co-
defendant party against whom the Claimants have no cause of action. See AJAYI VS JOLAYEMI (2001) 10
NWLR (PT. 722) 516. He finally urged the Court to refuse the grant of joinder sought by the Applicants
based on the Affidavit evidence presented in the suit.

Court's Decision

11. I have considered the submissions of the parties and the authorities cited and relied upon on this
action. I have equally read and analyzed the Affidavit in Support, Counter Affidavit, further Affidavit and
Reply on Points of Law including Written Addresses and the various annexures. This Court has adopted
the three (3) issues severally raised by the parties as the thrust of action. Other axillary issues may be
subsumed in the determination of these issues to wit:

i. Whether this Court can join parties whose accrued cause of action arose nine (9) years
ago in view of the Statute of Limitation.

ii. Whether this Court can join a party who is not a necessary, proper and desirable.

iii. Whether the Court can in view of the circumstances of the case and is in the interest of
justice grant this application.

Infact, the issue of jurisdiction is a fundamental and threshold issue. A Court is only competent to
entertain a case when the subject matter of the case which prevents the Court from exercising its
jurisdiction, and the case comes before the Court initiated by the due process of Law upon the
fulfillment of the condition precedent to the exercise of jurisdiction. See MADUKOLU VS NKEMDILIM
(1962) NSCE 374; DURU VS YUNUSA (2010) 10 NWLR (PT. 1200) (201) 80.
12. To begin with the snippet, the Respondents contended that the parties sought to be joined in this
suit had their cause of action accrued for the past nine (9) years ago in view of the combined effect of
Section 7 (1)(a) Limitation Act, Cap 52 Laws of the Federation of Nigeria, 1990 and Section 16 Limitation
Law Cap 80 of rivers State, 2006.

13. It was further contended that the parties sought to be joined had their appointments terminated
on the 13th day of March, 2014 and also their severance benefits were equally paid to them. Hence, it
was at that very time that cause of action aroused and not now. He referred the Court to paragraphs
3(a), 4(a)(b)(a) and 4(d) of the Counter Affidavit as adequate proof to that effect.

14. In an attempt to justify the cause of the delay in joining the parties sought to be joined stated in
paragraph 8 of the further Affidavit thus:

“That in further response, the parties sought to be joined as Claimants never slept, but have made
attempt to join the suit previously but their application was struck out for lack of diligent prosecution on
the part of our former lawyer which sin should not be visited on the Applicants.”

15. Similarly, in paragraphs 7 of the said further Affidavit stated also:

“That in further response to paragraph 4 above, state that the issues in dispute are labour related
matters and there is no law setting a limitation period to bringing such action.”

The question that called for determination at this juncture based on the above foregoing is whether the
parties sought to be joined are really caught up by the Limitation Law as rightly posited by the
Respondents taking into consideration the nature of the suit?

16. Infact, prior to this period, His Lordship Abba-Aji, JSC in ABUBAKAR ABDULRAHMAN VS NNPC
(2020) and MICHAEL IDACHABA & 4 ORS VS UNIVERSITY OF AGRICULTURE, MAKURDI & 4 ORS (2021)
LPELR - 53081 (SC) delivered on the 15th day of January, 2021 without reference to NRMAFC & 2 ORS VS
AJIBOLA would retreat and hold that Limitation Law applied to employment contract. However, the
current Supreme Court decision in the case of RECTOR KWARA POLY VS ADEFILA (2024) 9 NWLR (Pt.
1944) 529, the provisions of the Public Officer Protection Act does not apply to this case. So I hold.

17. On Issue No. 2, it is within the contemplation of the Applicants that they are necessary parties who
will be affected on way or the other in this proceeding, and to enable the Court to effectively and
completely adjudicate upon and settle all questions involved in the matter. But the Respondents argued
that the Applicants are neither necessary, proper nor desirable parties to this suit. Counsel referred the
Court to paragraphs 9, 10, 11, 12, 13 and 14 of the Counter Affidavit and placed reliance on Exhibit ‘AX1’
and ‘BX1’ which clearly shows that the party sought to be joined has no vested interest in the subject
matter of this suit.

18. According to Black Law Dictionary (9th Edition) at page 132:

“A necessary party is one who is not interested in the proceeding but whom in his absence the
proceeding cannot be fairly and insidiously be decided. In other words the questions to be settled in the
action be between the existing parties must be a question which cannot be settled unless the necessary
party to the particular claim is joined in the action.”

The Supreme Court in the case of PANALPINA WORLD TRANSPORT LTD VS JB OLANDEEN INTL &
ORS (2010) LPELR defined Necessary Party to a proceeding as a party whose presence and participation
is necessary or essential for the effective and complete determination of the claim before the Court. See
TEJUOSU VS ASSEST MANAGEMENT CORPORATION OF NIG & ORS (2015) LPELR – 24077 CA.

19. The parties having joined issues as to whether to grant the application or not the Apex Court in the
case of GREEN VS GREEN (1987) LPELR 1338 SC held that the Court should always ask itself the following
questions so as to determine who is necessary party:

a) Is the suit likely to be defeated by the non-joinder?

b) Is it possible for the Court to adjudicate a cause of action set up by the Plaintiff without the third
party?
c) Is the third party a person who ought to have been joined as a Defendant?

d) Is the 3rd party a person whose presence before the Court as a Defendant will be necessary in order
to enable the Court effectively to adjudicate on and settle all the question involved in the cause of
action? See LOTUS CAPITAL LTD VS NATIONWIDE UNITY TRANSPORT (2022) LPELR – 58708 (CA).

20. It is my considered opinion that the Applicants have demonstrated based on their Affidavit in
support as well as the judicial and statutory authorities cited to that effect that they are necessary
parties. It is worthy to note that the Plaintiff has a duty to bring before the Court all parties whose
presence are crucial to the resolution of the matter and failure to do so, the action is liable to be struck
out. See ADISA VS OYINWOLA (2000) 6 SC 47. Likewise, where necessary party is not joined in a case the
Court lacks the jurisdiction to entertain that case. See AMUDA VS AJOBO (1995) 7 NWLR (Pt. 597) 70. So
I hold.

21. It is my considered opinion that, any further analysis into Exhibits ‘AX1’ and ‘BX1’ as relied by the
Respondents is tantamount to venturing into the substance of the matter at this stage of the
proceeding. I must however, appreciate and acknowledge the authorities cited in that wise.

22. Consequently, the application has merit and in accordance with Order 13 Rule 14(2) prayers 1 and
2 are granted as prayed.

------------------------------------

Hon. Justice M. A. Hamza

Judge