Academic Staff Union Of Polytechnics & Anor. v Governor Of Kogi State & Anor.

• Judge: Honourable Justice Sanusi Kado
• Judgment Date: 22 May 2020
• Respondent: Governor Of Kogi State & Anor.
• Appellant: Academic Staff Union Of Polytechnics & Anor.
• Docket Number: NICN/LKJ/07/2017
• Court: National Industrial Court (Nigeria)

1. This deals with motion on notice dated 16/3/2019 and filed on the 13/5/2019, brought pursuant to Order 26 Rule 1(1) 4 & 5 and Order 13 Rules 4 & 5 of the National Industrial Court of Nigeria Civil Procedure) Rules and under the inherent jurisdiction of the court. Vide this application the Claimant is praying for:-
1. An order to join Kogi State Polytechnic as the 3rd defendant in the extant suit. Suit no. NICN/LKJ/07/2017, Academic Staff Union of Polytechnics & Anor. V The Executive Governor of Kogi State & Anor.
2. Leave to amend the complaint, statement of facts and the accompanying processes in the suit. Academic Staff Union of Polytechnics & Anor. V The Executive Governor of Kogi State & Anrr. Suit No. NICN/LK07/2017, to wit amend the name of the 2nd Claimant to read Non-academic Staff Union Of Educational and Associated Institutions instead of Non-Academic Staff Union.
3. Leave to generally amend the complaint, the statement of facts and the accompanying process in the extant suit. Academic Staff Union of Nigeria & Anor. V Executive Governor of Kogi State & Anor. Suit No. NICN/LKJ/07/2017, which the proposed amended complaint, statement of facts and accompanying processes are exhibited and marked ‘A’ in order to now present the case as it touches, affects, and/or concerns the 3rd defendant and to also correct identifies typographical and/or grammatical errors in the originating processes.
4. Order deeming the amended complaint, amended statement of facts and the amended accompanying processes all dated 16/3/2019 and already filed and served as properly filed and served having paid the necessary filing fees.
2. The ground for this application are:
I. In the interest of justice and farness

II. To enable the claimants present their case to the best of their ability.

3. The application is supported by a 10 paragraphs affidavit sworn to by Baluromi Samuel Sunday, a Lecturer in the Kogi State Polytechnic. A written address was also filed along with the application.
4. Lucky Wisdom Dureke, Esq; counsel for the Claimant in oral adumbration relied on the deposition contained in the affidavit in support and adopts the written address as his argument. In the written address a lone issue was formulated for determination, to wit:
‘’Whether it serve the interest of justice and fair hearing to allow the claimants application so that the case is heard on the merit.
5. In arguing the sole issue counsel referred to paragraphs 13 – 17 of the affidavit in support and submitted that by the peculiar facts and circumstances of the instant matter, it is necessary to join the party sought to be joined. An application for joinder is determined by the peculiar facts and circumstances of the matter. It is contended that the suit will not be effectually and completely determined except the party sought to be joined, is joined.
6. According to counsel the instant application is to ensure that all the parties involved in the dispute before the court are before the Court and heard. The Claimants’ application seeks preserve the right of all persons or parties in the transaction of the union to fair hearing.
7. Counsel contended that it is crystal clear from the Affidavit in Support of the Motion on Notice and the existing Statement of Facts in the suit that the Claimant has made out legal claims against the party sought to be joined, which requires to be heard by the honourable Court. Whether the claim is weak or otherwise is immaterial at this stage. It is only after trial that the Court can determine this.
8. It is the contention of counsel that the application for joinder is brought to avoid multiplicity of actions as the party sought to be joined is affected by the claims of the Claimant and can be sued by the Claimant. It will amount to a waste to juristic time and ink to bring separate actions when the parties in the transaction are the same and also, are the facts. It will amount to duplicity of actions to sue NNPC (sic) separately. On this counsel refers to the case of Chef Paul & Ors. V Raymond Ogolo & Ors. (2003) 32 WRN 1 at 33, where the Supreme Court stated that,
"joinder of parties is to avoid multiplicity or duplicity of actions and to save litigation time in the judicial process. It is also one way of trying to avoid abuse of the Court process."
9. To further buttress this point counsel rely on the Supreme Court decision in GREEN V. GREEN ( 1987) 3 NWLR (Pt. 61) at 480, which is a locus classicus on the issue. It is further argued that the Claimant has disclosed a legitimate or genuine complaint or grievance against the party sought to be joined, which ought to be protected in the instant action.
10. It is reiterated that in the peculiar circumstances of this case, it will serve the interest of justice that the party sought to be joined to be joined. So that all the parties come before the Court and be heard in the matter.
11. Counsel submitted that it is important to state that trial has not started in the case. The Defendants have ample opportunity to amend their defence too.
12. It is submitted that the application for amendment is being made because the documents and facts being incorporated in the case were recently made available to the Claimant's counsel as they were recently obtained by the Claimant.
13. It is also submitted that the Defendants will not be prejudiced by a grant of the application. As Courts have moved away from technical justice to substantial justice. On this submission counsel relied on the case of Obakpolor V The State ( 1991) 1 SCNJ 91 at 103, lines 27 - 30 wherein it was stated as follows.
‘’It is...