IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA,
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA
DATED 4TH JUNE 2018 SUIT NO: NICN/ABJ/140/2017
1. YETUNDE MAFE
2. ATIKU BAWA
3. HUDU ZARAIKU CLAIMANTS
4. MUSTAPHA MOHAMMED
1. THE NATIONAL ASSEMBLY
2. THE ATTORNEY GENERAL OF THE FEDERATION DEFENDANTS
EKWEME NNENNA JOY Esq. for the Claimant
CHARLES YOILA for the 1st defendant
DAM MODOZIE for the 2nd Defendant
1) The claimant, by a General Form of Complaint filed on 8th May, 2017 with the accompanying frontloaded documents, approached the Court for the following reliefs:
a. Payment of the sum of N14, 052,960.00 (Fourteen Million. Fifty-two Thousand, Nine Hundred & Sixty Naira) representing the Claimants’ thirty (30) months’ salary arrears, unpaid salary increment for eight (8) months, Leave Allowance, Housing, Transport & Medical Allowances, Sallah and End-of-the- year Bonus for seven (7) years.
b. The cost of this suit.
2) The 2nd Defendant filed a NOTICE OF PRELIMINARY OBJECTION on 17th May, 2017 praying the Court for an order of the Court striking out the name of the 2nd Defendant as a party to this suit and setting aside all the processes served on him by the Claimant as they disclose no reasonable cause of action against him and as such not a proper party.
3) GROUNDS FOR THE RELIEFS SOUGHT
i. No legal factual or circumstantial relationship has been established to exist or alleged to exist between the Claimant and the 2nd Defendant.
ii. From the totality of processes filed and materials placed by the Claimant before the court, no wrong, dispute or default giving rise to a reasonable cause of action against the 2nd Defendant has been disclosed to warrant the claim of damages against him or to support and sustain his joinder as a party to this suit.
iii. The suit can be properly, completely, effectually and finally determined without joining the 2nd Defendant as a party.
4) WRITTEN ADDRESS IN SUPPORT OF THE 2ND DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION
1. Whether there is any reasonable cause of action disclosed before this Honourable Court against the 2nd defendant?
2 Whether the 2nd Defendant is a proper party to this suit before this Honourable Court?
6) ON ISSUE 1
Whether there is any reasonable cause of action disclosed before this Honourable Court against the 2nd defendant?
7) Learned Counsel submitted that Cause of action is defined as the operative fact or facts (factual situation) which gives rise to a right of action which itself is a remedial right; that it is the emergence of a factual situation which enables a party to an action in court to have a cause of suing a party. ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT. 1099) 539 at 551, paras. D-F, the Supreme Court quoted and applied the definition of the term, “cause of action” as defined by Oputa, J.S.C in FRED EGBE V. HON. JUSTICE J.A. ADEFARASIN (1987) 1 NWLR (PT.47) 1 at 20. He contended that in the instant case, there is no action or omission attributable to the 2nd Defendant against the Claimant. Likewise, that the Applicant has failed to show by compelling evidence any damage(s) he suffered on account of any action or omission of the 2nd Defendant. OGUNDE V. GATEWAY TRANSIT LTD & ANOR (2010) VOL 28 WRN PG 120 @ 140 LINES 20 — 30 the Court of Appeal while relying on the decision of the Supreme Court in CAPITAL BANCORP LTD V. SHELTER SAVINGS & LOANS LTD (2008) 3 NWLR PT 1020 PG 148.
8) Furthermore, that this case has not disclosed any dispute or relationship or privity of contact between the Applicant and the 2nd Defendant and as such no reasonable cause of action is disclosed against the 2nd Defendant to warrant the invocation of this Honourable Court’s jurisdiction to grant the reliefs being claimed by the Applicant against the 2nd Defendant. ONI V. IGBALAJOBI (2006) 9 NWLR PT. 984 PG 180 P. 187 PARA B the Court of Appeal relying on the case of ATTORNEY GENERAL OF ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATION AND ORS (2005) 6 SCNJ 1. Defence Counsel submitted that where a Plaintiff fails in his claim to disclose that he has reasonable cause of action, a court of law has no business deciding on the matter. ADETONA V. EDET (2001) 3 NWLR PT. 699 PG. 186 P. 190 PARAS. E — F, per OGUNTADE J.C.A. (as he then was).
9) It is counsel’s submission that to succeed in a claim for declaration, the Plaintiff must disclose material facts which will entitle the Court to determine the relevance of the reliefs sought by the Plaintiff against the Defendant. KEYAMO v LAGOS STATE HOUSE OF ASSEMBLY (2000) 132 NWLR PT 680 PG 196 @ 213 PARAS D-E.
10) ON ISSUE 2
Whether the 2nd Defendant is a proper party to this suit before this Honourable Court?
11) Learned Counsel submitted that Adekeye, JSC has in GOODWILL &TRUST INVEST LTD &ANOR V WITT & BUSH LTD (2011) UPELRSC- 266/200 stated that: “It is trite law that for a court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of this Honourable Court as it goes to the foundation of the suit. Defence Counsel submitted that where proper parties are not before a court, then the court lacks jurisdiction to hear the suit as was held in BEST VISION CENTRA LTD V UCA NPDC PLC. (2003) 13 NWLR (PT.838) 394; IKENE V ANAKWE (2000,) 8 NWLR, (PT.669), P.481; PEENOK LTD V HOTEL PRESIDENTIAL (1983) 4 NCLR P.122; EHUDIMHEN V MUSA (2000) 8 NWLR (P1.699), P.540. He further submitted that it was decided in MADUKOLU V NKEMDILIM (1962) 2 SC NLR 347 that: “a court is competent when: (a) it is properly constituted as regards numbers and qualification of members of the bench - that no member is disqualified for one reason or another; (h) the subject-matter of the action “is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; (c) proper parties are before the court; and (d) the action is initiated by due process of law and upon fulfillment of any conditions-precedent to the exercise of its jurisdiction. A-C LAGOS STATE V. DOSUNMU (1989) 2 NWLR (Pt.!!!), p.552 (SC); NEPA v. EDEGBENRO (2002), 18 NWLR (PT. 798) P. 79; IHEDNU V. OGBELDE (1994) 7NWLR (P1.359) 699.
12) Furthermore, that in GREEN V. GREEN (1987) 3 NWLR PT. 61, 480, necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with.
13) The CLAIMANTS REPLY IN OPPOSITION TO 2ND DEFENDANT’S PRELIMINARY OBJECTION was filed on 1st November, 2017.wherein the claimant raised one issue for determination.
Whether the joinder of the 2nd defendant is proper in the circumstances of this case.
15) It is Claimant Counsel’s submission that the objection of the defendant is misplaced and cannot stand the test of time because the Attorney General of the Federation is the chief law officer of the federation, and in his position, he advises both the President and the National Assembly. He guards both the executive privilege as well as legislative sanctity. That being the chief law officer of the Federation, he is a proper party to any suit involving the National Assembly.
16) That a Proper party is defined as a party though not interested in the plaintiff’s claims is made a party for good reasons. GREEN V GREEN (1987) 3 NWL.R (PT.61), 480 ratio 12. Counsel to the claimant argued that a cause of action arising in the operations of the National Assembly is enforced by or against the Government of the Federation, therefore making the Attorney general a party to any suit against the National assembly is proper as it is akin to instituting the suit against the government of the federation. Furthermore, that the Attorney General is a nominal party to this suit because even if the claims of the claimant will not affect him, he is nevertheless interested. And that a nominal party has been described as a party having some interest in the subject matter before the court, will not be affected but is nonetheless joined to avoid procedural defects. PADOWA & ORS v JATAU (2003) FWLR (PT.164) 228 252. Counsel submitted that joining of the 2nd defendant is for good reason being the chief law officer of the federation because in a suit involving an arm of government to which he renders legal advice, it will not be proper not to make him a party. And that the Attorney General of the Federation can be sued in any claim or complaint against the government of the federation. A.G. KANO v A.G. FEDERATION (2007) 6 NWLR (PT. 1029)164 © 192.
17) On the 25th April 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for ruling
18) Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the 2nd Defendant’s application.
19) The 2nd Defendant is asking the court to strike out the name of the 2nd Defendant as a Party to this suit and setting aside all processes served on him by the Claimant on the basis that this suit does not disclose a reasonable case against him and that the Office of the Attorney General of the Federation is not a necessary party to this suit.
20) The Claimant on his part counters that the Office of the 2nd Defendant as Chief Law Officer is necessary to this case and by virtue of this post the 2nd Defendant advises both the National Assembly and the President guarding both executive privilege as well as legislative sanctity
21) The law is trite that in determining the reasonableness of a cause of action the court look to the pleadings of the Claimant. What that means is that in determining whether or not a suit should be struck out due to non-disclosure of cause of action, the court must restrict itself to the facts pleaded in the Statement of Claim without resort to any extraneous facts…. MOHAMMED v. BABALOLA SAN (2011) LPELR-CA, per Tsammani, JCA referred to.] P. 136, paras. B-F.
22) In unreported SUIT NO. NICN/LA/114/2013 COMRADE ISHOLA ADESHINA SURAJUDEEN V. MR. ANTHONY NTED & ANOR the ruling of which was delivered on July 10, 2014 this Court (relying on the Learned Author ‘lai Oshitokunbo Oshisanya’s An Almanac of Contemporary Judicial Restatements – With Commentaries – The Basebook, Vol. ia, Administration of Justice and Evidence (Spectrum Books Limited: Ibadan), 2008 at page 3 paragraphs 10 – 13) defined cause of action as –
1. …the cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of Action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the Defendant has the right to traverse.
23) and it is of no moment whether the pleading would succeed or not See AG, FEDERATION V. AG, ABIA STATE & ORS  11 NWLR (PT. 725) 689 AT 733.
24) In the instant case the claimants reliefs are for; - the payment of (30) months’ salary arrears, unpaid salary increments for eight (8) months, Leave Allowance, Housing, Transport & Medical Allowances, Sallah and End-of-the- year Bonus for seven (7) years and costs of this suit. The Claimants are the Secretary, Cleaner and two Watchmen of the 1st Defendant at the Secretariat of the Regional Parliamentary Committee on Lake Chad in Maitama Abuja. And have brought their case against the 1st and 2nd Defendants.
25) The position of the law is that by ADEBAYO v. ANL & ANOR. (2015) 52 NLLR (PT. 175) 374 NIC @ 377 “A party is said to be a proper party though not interested in the claim of the plaintiffs, is nonetheless made a party for some good reason”. GREEN v. GREEN (1987) NWLR (PT. 61) 481. And a necessary party is one who is not only interested in the subject matter of the proceedings but also in whose absence the question to be settled between the existing parties cannot be properly settled. GREEN v. GREEN Supra.
26) ‘The blue litmus test for the determination of who may be a necessary party to a suit is predicated on whether the judgment will affect the party; - and one of the reasons which makes it necessary to make a particular person a party to an action is that he will be bound by the result of the action and to put to an end to parallel litigations”. See the case of GASSOL v. TUTARE (2013) 14 NWLR (PT. 1374) 221 @ 231 S.C. (P. 249, PARAS. C-E).
27) In the case of ENTERPRISE BANK LTD v. AROSO (2014) 3 NWLR (PT. 1394) 256 @ 266 S.C. it was held that “a person is made a party to an action if, and only if, the action cannot be effectually and completely settled unless he is a party. The plaintiff has an unfettered right to decide the person against whom to proceed. So also the courts have power to make changes as regards the parties so that in the end there is an effectual adjudication of all matters in controversy. However, the non-joinder of a party cannot defeat a claim’.
28) With regard to the 2nd Defendant, case law has long established, and I quote "'The pre-eminent and incontestable position of the Attorney-General, under the common law, as the Chief Law Officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognized by the courts. In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the Legislature. The Attorney-General has, at common law, been a master unto himself, law unto himself, and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings. These powers of the Attorney-General are not confined to cases where the State is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi, he can extend this to cases instituted by any other person or authority. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities." Per Aniagolu, J.S.C (Pp. 18-19, paras. E-E) EZOMO V. ATTORNEY-GENERAL, BENDEL STATE (1986) LPELR-1215(SC)
29) And more recently in IGWEGBE v. ANSELEM & ORS (2017) LPELR-42681(CA) the Court of Appeal had this to say of the 2nd Defendant’s Office; - once more I quote; - "As rightly submitted by the Appellant's Counsel, the Offices of the President of the Federation and Attorney General of the Federation are creations of the Constitution under Sections 130 and 150 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The President is the Head of State, the Chief Executive and Commander-in-Chief of the Armed Forces of the Federation. It is correct that the Constitution provides separately under Sections 2 and 130 of the Constitution, the Federation known as the Federal Republic of Nigeria and the Office of the President of the Federation. It is also correct that the Federation known as the Federal Republic of Nigeria is a distinct and separate entity from the Office of the President of the Federal Republic of Nigeria. However, whatever functions or duty or power the President performs or exercises as conferred on him by the Constitution or any other Statute or Act of the National Assembly is a public power vested in him as an agent of the Federal Republic of Nigeria and which he exercises for the purpose of good governance in Nigeria.
30) The power to appoint a Chief Medical Director conferred on the President under Section 5 (1) of University Teaching Hospitals (Reconstitution of Boards etc.) Act is conferred on him in his official capacity. The said power is therefore a public right or power. The exercise of that right or power is in the interest of the public and constitutes a public act for which he can be sued in his official capacity but that does not make the President a necessary party in every case where the matter relates to the exercise of his constitutional duty or power. This is because in the exercise of that power, the President acts for and on behalf of the Federal Republic of Nigeria and Federal Government of Nigeria. See NIGERIA ENGINEERING WORKS LTD. V. DENAP. LTD (2001) NWLR (PT. 746) 726 AT 751 (E-H), where the Supreme Court held as follows:
31) "In the consolidated suit of ATTORNEY GENERAL OF OGUN, BENDEL AND BORNO STATES V. ATTORNEY GENERAL OF THE FEDERATION AND 2 ORS. (1982) 1-2 SC 13 AT 86 this Court in considering the provisions of the Public Order Act 1981, and the powers of the Military Administrator thereunder held per Idigbe JSC that
32) "Power which is another form of legal right is either public or private. Public powers "are those vested in a person as an agent or instrument of the functions of the State" and private powers, on the other hand, "are those which are vested in persons to be exercised for their own purposes and not as agent of the State (see SALMON: JURISPRUDENCE 12 Edition pages 229-230 Chapter 42). When a Statute confers a power on the holder of an office it is a public power; and then unless the contrary intention appears from or in the Statute, the power may be exercised only virtue office (i.e. by the holder of the office and by his successor-in-office or the holder of the office for the time being."
33) The Attorney General of the Federation as the Chief Law Officer of the Federal Republic of Nigeria has an interest in the interpretation of the Constitution, Statutes and other Laws of the Federation. See A. G. OF THE FEDERATION V. A. N. P. P. (2003) 18 NWLR (PT. 851) 182. It is clear from the authorities that the Attorney General being the Chief Law Officer of the Federation is the proper party to be sued in any action against the Federal Government, the Federation of Nigeria or any of its agencies which impliedly includes the President of the Federation who exercise the powers vested in him by the Constitution for and on behalf of the Federal Republic of Nigeria. See FEDERAL AIRPORT AUTHORITY OF NIGERIA V. BI-COURTNEY LTD & ANOR. (2011) LPELR - 19742 (CA). In A.G KANO STATE V. A. G. FED. (2007) 6 NWLR (PT. 1029) 164 AT 192 (B-C), the Supreme Court held as follows:
34) "It is not in dispute that the Attorney General of the Federation can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of."
35) In the light of the foregoing, I am of the firm view that any action against the President who exercises the power or authority conferred on him on behalf of the Federal Republic of Nigeria may be instituted against the Attorney General of the Federation. The President need not be a party to the action. The non- joinder of the President in this suit does not render the proceedings incompetent and does not rob the Court of its jurisdiction to entertain the action." Per BOLAJI-YUSUFF, J.C.A. (Pp. 19-23, Paras. D-B) “
36) What this means is that the Office of the Attorney General is invested with Public powers to be exercised by virtue of his office. The Attorney General of the Federation as the Chief Law Officer of the Federal Republic of Nigeria has an interest in the interpretation of the Constitution, Statutes and other Laws of the Federation and is the proper party to be sued in any action against the Federal Government, the Federation of Nigeria[ or (as well as) any of its agencies which impliedly includes the President of the Federation who exercise the powers vested in him by the Constitution for and on behalf of the Federal Republic of Nigeria]
37) From the foregoing I find that there is nothing untoward in the claimants bring an action against the 2nd Defendant as they have, that they are well within their rights so to do, I find and hold while reiterating for emphasis that the Claimant has an unassailable and unfettered right to decide the person against whom to proceed. ENTERPRISE BANK LTD v. AROSO Supra.
38) I resolve both issues against the 2nd Defendant, the Claimant have a reasonable cause of action and he 2nd Defendant is in law a proper party to this suit.
39) The 2nd Defendants preliminary objection dismissed as lacking in merit. I find and hold.
40) This is the court’s ruling and it is hereby entered accordingly.
HON. JUSTICE E. N. AGBAKOBA
PRESIDING JUDGE, ABUJA DIVISION