IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: June 25, 2019 Suit No: NICN/PHC/142/2013
Mr. Ukeh Moses Ichongo Claimant
1. DG/CE Standards Organization of Nigeria
2. Standards Organization of Nigeria
3. Chairman Standard Organization of Nigeria Defendants
4. Standard Council of Nigeria
5. A.G. & Minister for Justice of Nigeria
K.B. Egweteng for the Claimant.
D.L. Inko –Tariah (Mrs.) Principal State Counsel, Ministry of Justice, South-South Zonal Office, Port Harcourt for the 5th Defendant .
No counsel for the 1st to 4th Defendants.
1. This case was transferred to this Court from the Federal High Court of Justice, Markurdi Judicial Division. By paragraph 64 of its’ Amended Statement of Claims filed on February 2, 2015 at page 103 particularly at page 112 of the record, the claimant is seeking for the following reliefs against the defendants:
i. A Declaration of the Honourable Court that the actions of the 4th Defendant’s termination of the Plaintiff’s employment by the 1st Defendant for the 2nd Defendant was arbitrary, wrongful, null and void (sic).
ii. A Declaration of the Honourable Court that the actions of the 4th Defendant the subject matter of this suit constitute interference in the contractual relations between the Plaintiff and the 2nd Defendant causing wrongful termination of the Plaintiff’s employment, hardship and mental anguish to the Claimant.
iii. An Order of the Honourable Court upon the 2nd and 4th Defendants to pay the Plaintiff the sum of N10,740,306:00k (Ten Million Seven Hundred and Forty Thousand, Three Hundred and Six Naira) being damages to wit N10,000,000:00k (Ten Million Naira) general and exemplary damages by the 4th Defendant for wrongful interference in the contractual relations between the Plaintiff and the 2nd Defendant causing wrongful termination of the Plaintiff, and N740,306:00k (Seven Hundred and Forty Thousand, Three Hundred and Six Naira) special damages by the 2nd Defendant for wrongful termination of employment, forfeited accommodation resulting there from and cost of litigation.
iv. An Order of the Honourable Court upon the 2nd and 4th Defendants to pay 10% monthly interest on the judgment sum to the Plaintiff until same is completely liquidated by the said Defendants.
2. On September 17, 2015 counsel to the 5th defendant filed a Notice of Preliminary Objection challenging the competence of the Amended Statement of Claims; urging this Court to strike out the name of the 5th Defendant/Applicant as the Suit discloses no reasonable cause of action against the 5th Defendant/Applicant.
The notice is based on these two grounds:
i. That the 5th Defendant/Applicant is not a necessary party to the Suit.
ii. That there is no cause of action disclosed against the 5th Defendant/Applicant
The notice is not supported by an affidavit, but with a written address and counsel to 5th defendant did not formulate any issue for Court’s determination.
3. Counsel submitted that the Law is settled that when an objection is raised that the Statement of Claim does not disclose a reasonable cause of action, it is the Statement of Claim that has to be examined and not a Statement of Defence to ascertain whether there is a reasonable cause of action before the court; citing Ibrahim v. Osim  3 NWLR (Pt. 83) Pages 271-272 Paragraphs H – A. He went on that for a statement of claim to disclose a reasonable cause of action; it must set out the Legal right of the Plaintiffs and obligations of the Defendants. It must then go on to set out facts constituting infraction of the Plaintiffs legal right or failure of the Defendant to fulfill his obligation in such a way that there is proper defence, the claimant will succeed in the relief or remedy he seeks. Counsel went on that by the Writ of Summons and Statement of Claim filed by the Claimant on February 2, 2015 that no reasonable cause of action is disclosed against the 5th Defendant in this suit. Counsel urged the Court to strike out the name of the Attorney-General of the Federation as no reasonable cause of action is alleged against him as he is only being sued as the Chief Law Officer of the Federal Republic of Nigeria.
4. Responding to the Preliminary Objection, counsel to the claimant filed a reply on point of law and he too did not frame any issue for determination. He submitted that, in order to determine whether a party is properly brought before the Court as a Defendant, all the court is required to do by law is to examine the Claim before it; citing Dosunmu v. N.N.P.C  6 NWLR (Pt. 1403) 282 @ 305, paragraph E and Oluwaniyi v. Adewumi  13 (Pt. 1104) 387@ 410, paragraphs A-B.
Counsel went on that Paragraph 7 of the Amended Statement of Claim discloses the capacity in, which the 5th Defendant/ Objector was sued as a Defendant in this action and that there is no doubt that the 5th Defendant/Objector has an agency relationship with the 1st to 4th Defendants and the Federal Government of Nigeria within the meaning of the term ‘agency’ in law; citing Mikano v. Ehumadu  1 NWLR (Pt. 1387) 100 @132-123, paragraphs B-C. He further submitted that the 5th Defendant/Objector is indeed the Chief Legal Officer through whom the 1st to 4th Defendants as agents of the Federal Government of Nigeria can sue and be sued. (no law is cited for this assertion)
5. In addition, Counsel submitted that from the facts of the matter and the reliefs sought as disclosed by the Claim, the extant matter is not only an action in contract but an action in tort. And that it is the law that in line with the legal principle of vicarious liability a victim of a tort is at liberty to sue all joint-feasors with their agents and /or principal; relying on Abah v. Jabusco  3NWLR (Pt. 1075) 526 @550, paragraphs B-E. He continued his submission that it is not at all the position in law that once a party is not a necessary party that automatically constitutes a misjoinder of parties when the law recognizes proper parties and even nominal parties. To counsel, it is the law that a person can be made a party to a suit simply so that he can be bound by the action and its results as that is even one of the cardinal reasons for joinder of parties; citing Mbanefo v. Molokwu  6 NWLR (Pt. 1403) 377 @ 410, paragraph D; Mudashiru v. Onyearu  7 NWLR (Pt. 1354) 419 @447, paragraphs A-B. Therefore, counsel urged the Court to dismiss the Preliminary Objection.
6. Court’s Decision
I have read through the Amended Statement of Claims. I have also gone through the prayers in the Preliminary Objection, the arguments for and against, together with the authorities cited in support of their arguments by counsel. From all of this, I am of the considered view that the only issue to resolve in this application is:
Whether or not the 5th Defendant/Applicant is a necessary party in this suit.
7. On issue of parties to a suit, the Law is that when a person has been made a party in a case without the intervention of the Court; the Court seized of the matter may determine whether he has been properly or improperly joined as a party in that case, see Onwuka v. Maduka  18 NWLR (Pt. 799) 586 at 602, paragraphs A-C.
The depositions in paragraphs 2 to 6 of the Amended Statement of Claims are apt on this application and they state:
ii. The 1st Defendant namely the Director General/Chief Executive of Standards Organization of Nigeria is the Chief Executive of the 2nd Defendant.
iii. The 2nd Defendant namely Standards Organization of Nigeria is a Statutory body established under Section 1 (1) of Cap 412 of the Laws of the Federation of Nigeria 1990 and whose employ the plaintiff hitherto was.
iv. The 3rd defendant namely the Chairman, Standard Organization of Nigeria, presides over the 4th Defendant.
v. The 4th Defendant namely Standard Council of Nigeria is a statutory organ of the 2nd Defendant established under Section 2(1) of Cap 412 of the Laws of the Federation of Nigeria 1990.
vi. The 5th Defendant namely the Attorney General of the Federation and Minister of Justice, Nigeria is the Chief Legal Officer through which the 1st to 4th Defendants as agent of Federal Government of Nigeria are sued.
8. It is the argument of the counsel to the claimant at paragraph 2.2 of his reply on point of law to notice of preliminary objection at 239 that Paragraph 7 of the Amended Statement of Claim discloses the capacity in which the 5th Defendant/Objector was sued as a Defendant in this action. However, no such fact is pleaded in paragraph 7 of the Amended Statement of Claims as what the claimant pleaded is that: “The plaintiff was employed on a temporary basis by the 2nd Defendants as Administrative Officer II vide the 2nd Defendant’s letter of 29th March, 2000 with Reference No: SON/906A/XII/37. The said letter is hereby pleaded and a copy of same herewith annexed as Annexure 1.” I find here that it is misleading and very offensive for the claimant’s counsel to argue as he did in paragraph 2.2 of his address when no fact like that was pleaded. It will be in the interest of counsel to avoid such sharp practice in this Court so as not to land him serious trouble.
9. Claimant’s counsel continued that there is no doubt that the 5th Defendant/Objector has an agency relationship with the 1st to 4th Defendants and the Federal Government of Nigeria within the meaning of the term ‘agency’ in law, citing Mikano v. Ehumadu  1 NWLR (Pt. 1387) 100@132-133, paragraphs B-C. Section 1(1) and (2) of the Standard Organization of Nigeria Act states that the 2nd defendant (Standards Organization of Nigeria) was established as a body cooperate with perpetual succession and a common seal, and may sue and be sued in its cooperate name. Section 2 of the Act is on power of the Minister to give directives to the Organization while section 24; the interpretation section of the Act, defines “Minister” in the Act to mean the Minister for Industry.
10. As the Court held in the case of Mikano v. Ehumadu [supra] cited by counsel to the claimant, ‘Agency’ is a relationship that exists between two persons; one of whom expressly or impliedly consents that the other should represent him or act on his behalf, and the other who consented to represent the former or so to act for him. From the pleadings before the Court in this case, I find and hold that there is no express or implied consents of any agency relationship between the 1st - 4th defendants on one hand and the 5th defendant on the other hand.
Furthermore, by the provisions of section 1(1) and (2) of the Standard Organization of Nigeria Act, Cap S9 LFN, 2010 the 2nd defendant is a statutory body, a body cooperate that may sue and be sued in its cooperate name. Also, by the provisions of sections 2 & 24 of the same Act, it is the Minister of Industry who gives directives to the Organization (the 2nd defendant). Therefore, I hold that there is nothing linking the 5th defendant with the 1st to 4th defendants in this case. I again hold that the 5th defendant cannot be held responsible for the inaction of the 1st to 4th defendants.
11. Additionally, the 5th defendant in the instant case is the Attorney General of the Federation and Minister of Justice. It is trite that the function of the Attorney General is to sue and be sued for the acts of the Government and as a matter of law, the Attorney-General has the locus standi to commence and defend actions for and on behalf of the Government; see the case of A/G Federation v. Ajayi  12 NWLR (Pt. 682) page 483 at 531 paragraph C. The 2nd defendant before the Court is a statutory body who takes instructions from the Minister of Industry as found and held above. Consequently, I hold that the 5th defendant is not a necessary party in whose absence, the proceeding before the court could not be fairly dealt with and questions properly settled. Since the claimant is not claiming anything from the 5th defendant, I hold in addition that the 5th defendant is not a proper party in this case and its name is accordingly struck out as the 5th defendant in this case. This preliminary objection has merit and it is accordingly upheld.
12. Ruling is entered accordingly and counsel to the claimant is to pay N50,000.00 cost to counsel to the 5th defendant within 30days from today.
Hon. Justice F. I. Kola-Olalere