GOVT OF AKWA IBOM STATE & ORS v. MATHEW & ORS (2022)

GOVT OF AKWA IBOM STATE & ORS v. MATHEW & ORS

(2022)LCN/16753(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/C/362/2018

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. GOVERNMENT OF AKWA IBOM STATE 2. GOVERNOR UDOM GABRIEL EMMANUEL 3. AKWA IBOM STATE MINISTRY OF EDUCATION 4. AKWA IBOM STATE SECONDARY EDUCATION BOARD 5. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, AKWA IBOM STATE 6. THE ACCOUNTANT GENERAL OF AKWA IBOM STATE 7. AKWA IBOM STATE CIVIL SERVICE COMMISSION 8. THE AKWA IBOM STATE HEAD OF CIVIL SERVICE APPELANT(S)

And

1. AYAGWUNG JOSHUA MATHEW (Master Grade Level 8. Sep 02) 2. ARCHIBONG ENEFIOK INNOCENT (Master Grade Level 8. Sep 02) 3. BEN OKON OBOHO (Master Grade Level 8. Sep 02) 4. AKPAN SUNDAY BASSEY (Master Grade Level 8. Sep 02) 5. EKPO EMEM MFREKE (Master Grade Level 8. Sep 02) 6. BASSEY ANTE EFFIONG (Master Grade Level 8. Sep 02) 7. ETIM INEM BASSEY (Master Grade Level 8. Sep 02) 8. AKANINYENE GABRIEL ESSIEN (Master Grade Level 8. Sep 02) 9. MBOSO JOSIAH NKOP (Master Grade Level 8. Sep 02) 10. OWOIDIGHE MONDAY AKPANUDO (Master Grade Level 8. Sep 02) 11. UNYIME IMO INYANG (Master Grade Level 8. Sep 02) 12. EYO VICTORIA (Master Grade Level 8. Sep 02) 13. UDI EDIDONG ETOP (Master Grade Level 8. Sep 02) 14. NKANTA BERNARD NDIFREKE (Master Grade Level 8. Sep 02) 15. EMEM EFIONG EBRESO (Master Grade Level 8. Sep 02) 16. IME OKON OBOT (Master Grade Level 8. Sep 02) 17. UMOH EMEM HENRY (Master Grade Level 8. Sep 02) 18. ENEH IMOH ETIM (Master Grade Level 8. Sep 02) 19. ANWAN UKEME ARCHIBONG (Master Grade Level 8. Sep 02) 20. OBOT UBONG AKPAN (Master Grade Level 8. Sep 02) 21. UBONG INYANG UKANA (Master Grade Level 8. Sep 02) 22. NDIFREKE NSE EKONG (Master Grade Level 8. Sep 02) (For Themselves And As Representative Of All The 5,000 Teachers Recruited By The Akwa Ibom State Government In April, 2015) RESPONDENT(S)

RATIO

THE TEST FOR DETERMINING WHETHER OR NOT A PERSON HAS LOCUS STANDI TO SUE

For a person to have the legal capacity to sue over matter, he must show sufficient interest in the subject matter of litigation and that will give him the access to institute proceedings in a Court of law. The pleadings of the party must disclose a cause of action vested in the plaintiff and the rights and obligations or interest of the plaintiff which have been violated before he can be vested with locus standi to sue. Thus, the two tests for determining if a person has locus standi are:-
(a) the action must be justifiable, and
(b) there must be a dispute between the parties.
See BARBUS & CO (NIG) LTD V. OKAFOR-UDEJI (2018) 11 NWLR (prt.1630) 298 at 311 – 312. In MUSTAPHA V. C.A.C (2019) 10 NWLR (prt.1680) 355 at 366, the Supreme Court was emphatic that no other person except the person on whom is vested the aggregate of the enforceable rights in a cause has the standing to sue where a person has brought an action claiming a relief against a party which on the facts of the matter is referable to another, he cannot succeed for want of locus standi simply because there is no dispute between them. PER SHUAIBU, J.C.A.

WHETHER OR NOT IT IS EVERY REPRESENTATIVE ACTION THAT EXPRESS AUTHORITY OF PERSON REPRESENTED MUST BE OBTAINED

I have stated that the respondents instituted the suit at the Court as representatives of all the 5,000 Teachers. A perusal of the statement of facts establishing the cause of action however disclosed no authorization to sue by those the respondents claimed to be representing. Contrariwise, in S.P.D.C.N. LTD V. EDAMKUE (supra), it was held that where a person sue in a representative capacity and was capable of being so easily understood, the action will not be struck out because the party could have been better described. In effect, it is not in every representative action that express authority of person represented should be obtained or the approval of the Court should be obtained. A representative action could be implied from the circumstances surrounding the action. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National Industrial Court sitting at Calabar Judicial Division delivered on 18th day of May, 2017 wherein the lower Court found that the rights of the claimants (now respondents) are common in nature and can therefore sue in representative capacity to avoid multiplicity of suit.

By a complaint in Suit No. NICN/UY/03/2017, filed at the lower Court on 28/01/2017, the claimants alleged that termination of their appointment by the Akwa Ibom State Government through a radio announcement was wrongful and therefore claimed against the appellants herein as follows:
(i) DECLARATION that the claimants are staff and employees of the Akwa Ibom State Government having been duly employed following the due process of law as MASTER GRADE II on salary Grade Level 08 Step 2, and having satisfied the necessary requirements that entitles them to be given letters of Appointment by the 4th defendant on behalf of the 1st and 3rd defendants.
(ii) DECLARATION that the nature of employment contract existing between the claimants and the defendants is one with a statutory flavor and not Master Servant relationship and as such, defendants must comply with the law, rules and statute giving flair to the employment of the claimants since the claimants have been in the employ of the 1st, 3rd and 4th defendants since 1st of April, 2015 till today.
(iii) DECLARATION that the announcement on radio and other media of mass communication, particularly the radio service of the Akwa Ibom Broadcasting Corporation (AKBC) purportedly terminating the appointment of the claimants made by the 8th defendant on behalf of the 1st defendant on the 30th of October, 2016 and subsequent announcements and publications, be discountenanced, declared to be rumours, null and void of no consequence whatsoever, and that the 1st to 8th defendants be made to withdraw the announcement with another announcement during the mischief generated by the announcements complained of herein.
(iv) DECLARATION that the continued non-payment by the 1st, 3rd, 4th, 6th, 7th and 8th defendant of the salary arrears, emoluments and other entitlements of the claimants as contained in the claimants OFFER OF APPOINTMENT INTO PENSIONABLE ESTABLISHMENT whose employment commenced on the 1st of April, 2015 till date, is a wrongful interference with their employment, and therefore unreasonable, unlawful, null and void, and amounts to a breach of contract which must be remedied and cured immediately; or, a DECLARATION that the indirect termination of the appointment of the claimants by denying them their salaries since their employment on the 1st of April, 2015 is wrongful, unlawful, null and void and of no effect whatsoever.
(v) A ORDER that Chapter 10 of the Akwa Ibom State Public Service Rules (2010 edition) which violates the Fundamental Right provisions of Fair Hearing as provided for by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended, be suspended for the purpose of this trial only. This frustrate genuine complaints of aggrieved public servants who are Nigerians entitled to provisions of the Constitution.
(vi) AN ORDER that the defendants for themselves and their agent, particularly the 1st, 3rd, 4th, 7th and 8th defendants rescind the purported media announcements which created the impression that the claimants had been relieved of their appointment with the 1st defendant acting for itself and other agents working for it.
(vii) AN ORDER that the claimant are duly employed staff of the 1st defendant having abandoned every other employment and opportunities they had, to take up this appointment, and having been given letters of appointment after satisfying the rigorous selection process put in place by the 1st defendant through the 3rd and 4th defendants.
(viii) AN ORDER restoring the claimants to their salaries, and compelling the 6th defendant in particular to calculate, compute and pay the claimants all their salary areas, emoluments, entitlements including allowances like housing, transport, medical, meal, allowances, leave grants and other allowances that the claimants are entitled to which has not been paid to them since 1st of April, 2015 when they became staff of the Akwa Ibom State Government with the commencing salary of N369,324.48 per annum Grade Level 08, Step 2, and using this commencing salary to do the computation;
(ix) AN ORDER directing the 1st – 8th defendants, particularly the 1st defendant, not to conduct any employment into the teaching service in Akwa Ibom State, or any other employment for that matter since 5,000 (Five Thousand) able-bodied and qualified indigenes of the state employed in April, 2015 are yet to be deployed to their place of primary assignments, or paid their salaries from when they were employed till date.
(x) AN ORDER directing all the defendants, particularly the 1st, 2nd, 7th and 8th defendants not to become prejudiced, jaundiced, attack, discriminate, oppress or punish the claimants for seeking this redress in Court without resorting to self-help, now, or in the future for whatever reason or guise;
(xi) In lieu of specific performance, payment of general damages of the sum of Five Million Naira (N5,000,000) to each claimant for the breach of contract by the necessary defendants, particularly, the 4th and the 1sdt defendants.
(xii) AN ORDER that the defendants pay the sum of Five Million Naira (N5,000,000) only to the claimants for the cost of engaging their Solicitor to take up this matter.

Upon being served with the originating process, appellants filed a notice of preliminary objection praying the lower Court to strike out the suit for lack of jurisdiction. The grounds upon which the said order was sought are:
1. That the claimants/respondents lacks the collective right to institute the action in a representative capacity.
2. That each of the claimant/respondents has a separate cause of action against the defendants/respondents.

After hearing argument of the respective parties on the preliminary objection, the learned trial judge dismissed the preliminary objection and assumed jurisdiction to hear the suit.

Miffed by the said ruling, appellants appealed to this Court on 8th December, 2017 after leave was sought and obtained. Also by leave of this Court granted on 9/3/2020, appellants amended their notice of appeal and the said amended notice of appeal contains two grounds of appeal.

In the appellants’ brief of argument deemed filed on 9/3/2020, the appellants distilled the following two issues for the determination of this appeal:
1. Considering the facts that the respondents commenced the suit in a representative capacity, whether the learned trial judge was vested with the jurisdiction to entertain the suit against them?
2. Whether the respondents are vested with the locus standi to sue on behalf of other persons without any authorization from those other persons.

The respondents in their brief of argument deemed filed on 12/1/2022 adopted the two issues distilled by the appellants.

At the hearing of this appeal on 7/2/22, Sharon J. Eddie Esq., adopted and relied on the said brief in urging this Court to allow the appeal. The respondents’ brief was deemed argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2021.

ISSUE ONE
The contention of the appellants here is that in the realm of master and servant relationship, multitude of persons may be employed the same day, under the same terms of contract but this does not confer any collective right to sue or be represented on the employees as each of them has his terms of employment personal to him. Thus, each employee has domestic rights exclusively personal to him even though they share common terms of employment and representative action is not an option for the respondents to ventilate their grievance in the circumstance of this case. Counsel submitted that the reasoning by the lower Court that if all the Five thousand (5,000) respondents are suing the appellants in different actions will lead to too many trials was unattainable. He further submitted that since all the respondents in this suit representing the five thousand employees on whose behalf they sued have different interests, there cannot be representative action. He referred to ADEDIRAN V. INTERLAND TRANSPORT LTD (1991) 9 NWLR (prt.219) 183 and F.C.C.B (NIG) PLC V. ROSE (1998)4 NWLR (prt. 540) 37.

On behalf of respondents, it was contended that having been employed on the same date by the Akwa Ibom State Government after a rigorous screening and also been given letters of appointment which has statutory flavour, the respondents have common interest; common grievance, and the reliefs sought are beneficial to all the respondents. Counsel submitted that although each of the respondents had a right to sue but the circumstance of having a common interest, common grievance, and the relief sought is beneficial to all the respondents justified bringing the suit in a representative capacity. He referred to OGUNGWA & ORS V. WILLIAMS & ANOR (2019) LPELR – 47536 (CA) and EMENUWE & ORS V. INEC & ANOR (2018) LPELR – 46104 (CA) to the effect that when actions are instituted in a representative capacity, both the named plaintiffs and the unknown plaintiffs are parties to the suit. It is just the named plaintiffs who are the dominus litis, until the suit is determined one way or the other.

In further contention, counsel submitted that the appellants have no moral and legal capacity to challenge the respondents’ capacity to sue and the proper person would have been the un-named claimants, if they have any reason(s) to so challenge it. He referred to SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD V. EDAMKUE (2009) 14 NWLR (prt.1160)1 at 27-28 and DURBAR HOTEL PLC. V. ITYOUG & ORS (2010) LPELR – 4064 (CA).

The provisions of Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 provides that all persons may be joined in one action as claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such claimant(s) as may be found to be entitled to relief and for such relief as the claimant may be entitled to without any amendment.

It is clear for the above that the persons suing in a representative capacity must have the same interest in the proceeding. Thus, the subject matter must evince a common interest as opposed to diverse interest, common grievance and reliefs sought must in their nature be beneficial to all the representatives and those represented. See AYINDE & ORS V. AKANJI & ORS (1988) LPELR – 676 (SC) per CRAIG JSC (pp 26 – 27 paras F. Also in ELENDU V. EKWOABA (1998) 9 – 10 SC 143 at 152, the apex Court has held that for an action to lie in a representative capacity the following must co-exist:-
(a) there must be a common interest,
(b) there must be a common grievance, and
(c) the relief claimed must be beneficial to all.

The question here is did the above conditions co-exist in the suit giving rise to this appeal? In paragraphs 10, 11, 12, 13, 19 and 22 of the statement of facts establishing the cause of action, respondents succinctly put their case as follows:-
“10. The claimants are the successful indigenes of Akwa Ibom State who applied for, and were the 5,000 persons employed by the Akwa Ibom State Secondary Education Board on behalf of the Akwa Ibom State Government in April, 2015.
11. The claimants were given employments that have a statutory flavour since it was based on a statute, and were employed as Master/Mistress Grade II, on salary Grade Level 08 Step 2 with a commencing salary of N369,324.48 per annum. The OFFER OF APPOINTMENT INTO PENSIONABLE ESTABLISHMENT dated 2nd of February, 2015, is hereby pleaded, and shall be relied on in the course of this trial.
12. The claimants had responded to an advertisement in The Pioneer newspaper of September 23, 2013 for them to obtained application forms for recruitment into the teaching service of the Akwa Ibom State Civil Service. The newspaper is hereby pleaded and shall be relied upon in the course of this trial.
13. After claimants had been made to undergo the entire process of the recruitment rigors which commenced on the 30th of September, 2013 when they picked the Application Forms like several other thousand Akwa Ibom indigenes, passed through 2nd of February, 2015 when they were issued with Offer of Appointment letters, they were eventually issued with Appointment Letters in April, 2015. This phase of screening, medicals, examinations and interviews, documentation and the others, took nineteen months to complete.
19. And having fulfilled all obligations in respect of the screening and recruitment process, the claimants were given Offer of Appointment letters on 2nd of February, 2015 by the 4th defendant in compliance with the rules governing the operations of the 1st, 3rd, 4th, 7th and 8th defendants. Chapter 2, Section 020201, page 7 of the Akwa Ibom State Public Service Rules (2010 Edition) is hereby pleaded. This shall be relied upon in the course of this trial.
22. Claimants have not been deployed or asked to resume at any of the public secondary schools owned, managed and controlled by the 4th defendant on behalf of the 1st defendant, after appointment letters were issued to them.

I have stated earlier that by the provisions of Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedures) Rules 2017, the persons being represented and the persons representing them must have the same interest in the cause or matter. Not only that, the grievance which they all have must be common grievance. In the case at hand, the respondents and others on whose behalf they claimed to be representing in representative capacity had varied and diverse domestic interests. In ENUGUNUM & ORS V. CHEVRON (NIG) LTD (2014) LPELR – 24088 (CA), ABUBAKAR, JCA (as he then was) had re-affirmed the already settled legal position that contract of employment is personal to each employee, employees cannot have a collective right to sue for breach of terms of their contract of employment jointly and severally.
In the realm of master and servant relationship, multitude of persons may be employed the same day, under the same terms of contract, this does not confer any collective right to sue or be represented on the employees, each one of them has his terms of employment personal to him, each employee has domestic rights exclusively personal to him even though they share common terms of employment, representative action is therefore not an option for the claimants to ventilate their grievance in the circumstance, such option is certainly not available to them. See OGUNGWA V. WILLIAMS also reported in (2020) 8 NWLR (prt. 1725) 38, at 57. Also in C.C.B (NIG) PLC V. ROSE (1998)4 NWLR (prt.544) 37, this Court has found that the interest of each respondent is tied to his/her contract of employment with appellant. The terms of their contract are different from each other. Each signed a separate contract with the appellant and thus action in a representative capacity does not apply.

In the light of the foregoing, the learned trial judge was clearly in error when he found on page 293 of the record thus:
“The issue is not whether these claimants have personal right, the question should be whether the right of action each of them has, are common in nature as to warrant claimants to sue in representative capacity so as to avoid multiplicity of suit?”

Learned trial judge appeared to have been swayed by the need to avoid multiplicity of suit but the determinants are the communality of interest, grievance and reliefs claimed which must necessarily be beneficial to all. I therefore resolved this issue in favour of the appellants.

ISSUE TWO
The appellants’ contention as regards to this issue is that in the absence of any facts authorizing the respondents to commence the suit on behalf of 5000 others, the learned trial judge was in error to have ruled in favour of the respondents. Counsel therefore submitted that before any person can call in aid the judicial powers of the Court, the matter must relates to his civil rights and obligation and not of another. In aid, counsel relied on ABRAHAM ADESANYA V. PRESIDENT OF NIGERIA (1981) 12 NSCC 146, BEWAJI V. OBASANJO (2008) 9 NWLR (prt 1093)540 at 546 and ELENDU V. EKWOABA (1995)3 NWLR (prt.386) 704 to the effect that without authorization, the respondents cannot bring this action on behalf of 5,000 teachers and that they do not have such locus standi to bring such action for others.

In response, the respondents contended that the statement of facts establishing the cause of action together with the deposition on oath on behalf of the respondents inclusive of the supporting documents are succinct materials showing their locus standi. Counsel submitted that the absence of written consent cannot invalidate an action in representative capacity. He referred to OLUBODE V. AYOTIDE GLOBAL INVESTMENTS LTD & ORS (2017) LPELR – 43221 (CA).

For a person to have the legal capacity to sue over matter, he must show sufficient interest in the subject matter of litigation and that will give him the access to institute proceedings in a Court of law. The pleadings of the party must disclose a cause of action vested in the plaintiff and the rights and obligations or interest of the plaintiff which have been violated before he can be vested with locus standi to sue. Thus, the two tests for determining if a person has locus standi are:-
(a) the action must be justifiable, and
(b) there must be a dispute between the parties.
See BARBUS & CO (NIG) LTD V. OKAFOR-UDEJI (2018) 11 NWLR (prt.1630) 298 at 311 – 312. In MUSTAPHA V. C.A.C (2019) 10 NWLR (prt.1680) 355 at 366, the Supreme Court was emphatic that no other person except the person on whom is vested the aggregate of the enforceable rights in a cause has the standing to sue where a person has brought an action claiming a relief against a party which on the facts of the matter is referable to another, he cannot succeed for want of locus standi simply because there is no dispute between them.

I have stated that the respondents instituted the suit at the Court as representatives of all the 5,000 Teachers. A perusal of the statement of facts establishing the cause of action however disclosed no authorization to sue by those the respondents claimed to be representing. Contrariwise, in S.P.D.C.N. LTD V. EDAMKUE (supra), it was held that where a person sue in a representative capacity and was capable of being so easily understood, the action will not be struck out because the party could have been better described. In effect, it is not in every representative action that express authority of person represented should be obtained or the approval of the Court should be obtained. A representative action could be implied from the circumstances surrounding the action.

In the instant case, the substratum of the appellants’ complaint was that there was absence of common interest, common grievance and divergent reliefs which were not beneficial to all the respondents. Thus, the issue in contention transcend beyond authorization to sue on behalf of others unnamed. It is therefore my view that a representative action could not be implied given the surrounding circumstances of this case. Issue two is also resolved against the respondents.

All the two issues having been resolved against the respondents, the result is that the appeal is meritorious and it should be allowed. I accordingly allow the appeal and set aside the ruling of the lower Court delivered on 18/5/2017. In consequence thereof, suit no. NICN/UY/03/2017 is hereby set aside for want of jurisdiction.

Parties shall bear their respective costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother, Shuaibu, JCA and I agree with both the reasoning and conclusions and have nothing useful to add. I too allow the appeal and abide by the consequential orders contained therein.

BALKISU BELLO ALIYU, J.C.A.: I read in draft the judgment just delivered by my learned brother, M. L Shuaibu, JCA. I agree with the reasoning and conclusion reached and I adopt same as mine in also allowing the appeal.

I set aside the ruling of the National Industrial Court, Calabar Division delivered on the 18/5/2017 in suit no: NICN/UY/03/2017. That suit is struck out for being incompetent and the lower Court lacked jurisdiction to determine it.