IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date: 10th July 2019 SUIT NO. NICN/LA/601/2018
OVERLAND AIRWAYS LIMITED … CLAIMANT
1. WASIU DUROJAIYE HUSSAIN ] … DEFENDANTS
2. DORNIER AVIATION [AIEP] LTD.]
Michael Akinleye Esq. for the Claimant
Ferdinand Ikuru Esq.for the 2nd Defendant
1. By notice of preliminary dated 26th December 2018 and filed on 4th January 2019 brought pursuant to Order 18 Rule 2 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and under the inherent jurisdiction of this Honourable Court, the 2nd Defendant prayed the Court for an order striking out the name of the 2nd Defendant for misjoinder, wherein the Plaintiff having [sic] failed to disclose a reasonable cause of action against the 2nd Defendant and for such further orders as this Honourable Court may deem fit to make in the circumstances of this suit on the following grounds:
b. That the inclusion of the name of the 2nd Defendant in this suit is a misjoinder wherein the 2nd Defendant is not a party to the Training Program Bond Agreement entered into between the Claimant and the 1st Defendant.
c. That the 2nd Defendant is not the guarantor to any of the Training Program Bond Agreement entered between the Claimant and the 1st Defendant.
d. That the Court is empowered by law not to entertain this suit against the 2nd Defendant because it lack [sic] the requisite jurisdiction when there is no cause of action against a party in the proceeding.
The preliminary objection is supported with 4 paragraphs affidavit and a written address. Attached to the affidavit is exhibit A. After receipt of the preliminary objection, the Claimant filed a counter affidavit and written address. The application came up for hearing on 15th May 2019. Learned Counsel for the 2nd Defendant, Mr. Ikuru, argued the preliminary objection and urged the Court to strike out the name of the 2nd Defendant from the suit. Learned Counsel for the Claimant, Mr. Akinleye, adopted his counter affidavit and written address and urged the Court to dismiss the application.
2. The 2nd Defendant raised one issue for determination, to wit:
The Claimant also formulated one issue for determination, viz:
“Whether the Applicant is entitled to the relief sought in its Notice of Preliminary Objection filed on 4th January 2019?
I have considered the submissions of learned Counsel for the parties and, in my respectful view, the issue for determination in this application is whether the 2nd Defendant is a proper party to this suit?
3. Order 13 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 regulates parties to a suit. Rule 4 provides:
“Any person may be joined as Defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the Defendants as may be found liable, according to their respective liabilities, without any amendment.”
Rule 6 states:
“It shall not be necessary for every Defendant to be interested in all the reliefs prayed for, or as to every cause of action included in any proceeding against such a Defendant.”
Explaining the rationale for the rule of joinder of parties in a suit, the Supreme Court in Re: Yesufu Faleke Mogaji v. Oyedeji Akanbi Mogaji & Ors.  LPELR-1891[SC] 41, per Karibi-Whyte, J.S.C [as he then was], posited:
“The governing principle which is a cardinal rule for the administration of justice is that principle conveniently expressed in Latin interest rei publicae ut sit finis litium. The termination of litigation is in the public interest. Hence where the issues between the parties involve third parties whose interest are affected and the omission of which was bound to result in further litigation, such parties are those whose presence will be necessary for the effectual and complete adjudication of the matter before the Court, and their presence as parties is a sine qua non for the purpose.”
Thus, a person whose interest will be affected by the decision of the Court ought to be made a party to the suit. Order 13 rule 6 of the Rules of this Court takes this principle further. It provides that ‘it shall not be necessary for every Defendant to be interested in all the reliefs prayed for, or as to every cause of action included in any proceeding against such a Defendant.” This means, in my considered opinion, that the fact that some of the reliefs do not affect a Defendant does not render his presence unnecessary or result in a misjoinder.
4. Arguing the preliminary objection learned Counsel for the 2nd Defendant submitted that cause of action is the foundation of any litigation process and the root of jurisdiction in any case. He explained that to determine whether a cause of action exists the Court will examine the writ of summons and statement of claim to see if there is a breach which gives the Plaintiff a right of action and referred to Attorney General Adamawa State v. Attorney General of the Federation  14 NWLR [pt.1428] 515. He reviewed the statement of facts and contended that the Claimant’s right of action accrues from the offer of employment, training program bond agreement entered into between the Claimant and the 1st Defendant. He submitted that there is no evidence of any communication whatsoever between the 1st Defendant and the 2nd Defendant while the 1st Defendant was in Claimant’s employment to constitute an inducement for him to leave the Claimant’s employment. In his response, learned Counsel for the Claimant submitted that by Order 13 rule 4 of the Rules of this Court all that is required to make a party a Defendant in a suit is an allegation that there exists a right to a relief against him. He x-rayed the statement of facts particularly paragraphs 36 to 42 and submitted that these facts form the basis of the Claimant’s claim against the 2nd Defendant and constitute a legal right which is enforceable before this Court and referred to Sparkling Breweries Ltd & Ors. v. Union Bank of Nigeria Ltd.  LPELR-3109[SC]. He submitted that on this premise the joinder of the 2nd Defendant meets with the requirement of Order 13 rule 4 of the Rules of this Court.
5. First, it should be noted that at this stage of the proceeding we are not concerned about evidence. What is important in the consideration of this application is whether from the originating processes there are facts which constitute the basis of a claim against the 2nd Defendant. It is settled law that in determining whether a suit discloses a reasonable cause of action, the processes to consider are the Claimant’s processes; that is, the complaint, statement of facts and supporting documents. See Attorney General of Anambra State v. Attorney General of the Federation  LPELR-24343[SC] at pages 91-92. For the purpose of this application, the 2nd Defendant is deemed to have admitted the facts averred in the statement of facts. What constitutes a reasonable cause of action has been judicially defined in a plethora of decided cases, and learned Counsel for the parties have referred to some of these cases. Suffice it to say that a cause of action comprises every fact which is material to be proved to enable the Claimant to succeed. It is a factual situation the existence of which entitles the Claimant to obtain from the Court a remedy against the Defendant. Pursuant to section 6[b] of the Constitution of the Federal Republic of Nigeria, 1999 as amended, a cause of action has been held to include the question as to the civil rights and obligations of the Claimant founding the action to be determined by the Court in favour of one party against the other. See Chief Dr. Irene Thomas & 5Ors. v. The Most Reverend Timothy Omotayo Olufosoye  LPELR-3237[SC] at pages 22-23. A reasonable cause of action is thus a cause of action with some chance of success when only the allegations of the Claimant are considered. In so far as the statement of facts disclose some cause of action or raise some questions fit to be decided by the Court, the mere fact that the case is weak and not likely to succeed is immaterial. See Chief Dr. Irene Thomas & 5Ors. v. The Most Reverend Timothy Omotayo Olufosoye [supra] at pages 23-24 and Oba Ilufemiloye Adesola & Anor. v. Oba Oludele Falade-Fatila & Ors.  LPELR-23800[CA] at pages 39-40.
6. Applying this principle to this case, can it be said that the statement of facts does not raise some questions fit to be decided by this Court against the 2nd Defendant? I do not think so. I have carefully considered the complaint and statement of facts and I observe that the Claimant made specific allegations against the 2nd Defendant in paragraphs 36 to 41 of the statement of facts which, if proved, will entitle the Claimant to a remedy against the 2nd Defendant. In the circumstance,I find and hold that this suit discloses a reasonable cause of action against the 2nd Defendant. Resultantly, I find no merit in the preliminary objection and it is hereby dismissed with
N50,000 [fifty thousand naira] cost against the 2nd Defendant in favour of the Claimant payable within 7 days from the date of this ruling. Ruling is entered accordingly.
IKECHI GERALD NWENEKA