ALHAJI (HON) ISHOLA LAWAL & ORS. v. ATTORNEY GENERAL OF KWARA STATE & ANOR (2010)

ALHAJI (HON) ISHOLA LAWAL & ORS. v. ATTORNEY GENERAL OF KWARA STATE & ANOR

(2010)LCN/3911(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 30th day of June, 2010

CA/IL/77/2009

RATIO

FORMULATION OF ISSUES: EFFECT OF FORMULATING ISSUES NOT ROOTED IN THE GROUNDS OF APPEAL FILED

When issues formulated by a party are not rooted in the grounds of appeal filed, the court will have no option than to strike it out. Niki Tobi JSC, in Okolo v. UBN (2009) 3 NWLR (pt 859) held inter alia thus: “It is the law that issues must be formulated from grounds of appeal. In other words, issues not formulated from the ground of appeal will go to no issue. Issues should not be framed in the abstract but in concrete terms arising from and related to the grounds filed which represent the questions in controversy in the particular appeal.” Similarly, Ogbuagu JSC in Orexel Energy & Natural Resources Ltd. v. Trans Int’l Bank Ltd. (2008) 12 SC (pt 11) 240 opined thus: “It has been stated and restated in a line of decided authorities by this court and the Court of Appeal, that any issue or issues not formulated or distilled from a ground of appeal or covered by a ground of appeal is incompetent and will be struck out.” This court will not hesitate to strike out issue one of the respondents which does not have its root in the grounds of appeal filed. See Nnaji v. Ede (1996) 8 NWLR (pt 466) 332 @ 337 @ 339 PER SOTONYE DENTON WEST, J.C.A.

WHETHER A COURT OF LAW CAN REVIEW OR OVER RULE ITSELF

It is trite that a court of law cannot review or over rule itself except if it is a typographical error which will not alter the decision. In Nigerian Army v. Iyela (2008) 7-12 SC 35 0 48-51, the erudite jurist Tabai JSC held that “It is settled law that, once a court has given a final decision on a matter placed before it for adjudication, it becomes functus officio and is precluded from reviewing or varying the term of the judgment or order apart from the correction of clerical mistakes or accidental slips. This principle has been explained in several cases. Firstly, it is well settled that every judgment takes effect on pronouncement. This principle was articulated in Intercontractors Nigeria Ltd., v UAC of Nigerian Ltd (1988) 1 NSCC 737 @ 752, BANK OF West Africa UNPC Ltd. (1962) LLR 31, Olayinka Elusanmi (1971) 1 NWLR 227, in the English case of Thynne v Thyme (1955) 3 All ER 139 @ 146, the Court of Appeal; person Mofis L.J. stated the principle thus:- “Where a court has decided an issue and the decision of the court is very embodied in some judgment or order that has been made effective, then the court cannot reopen the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellant jurisdiction as may apply. But if a case arises therein the interest of accuracy it seems desirable to amend some part of a judgment other than it’s operative and substantive part it would seem to be regrettable if the inherent power of the court were limited or confirmed. ” A court becomes automatically functus officio in matters it gives a decision. To review such decision is an absolute abuse of power and the only body that can review such is the appellate court. A court cannot re-open the matter it has initially dealt with. PER SOTONYE DENTON WEST, J.C.A.

PRELIMINARY OBJECTION: PURPOSE OF PRELIMINARY OBJECTION

The purpose of preliminary objection is, if successful to terminate the hearing of the appeal in limine either partially or intoto. See Abia v CNSP 1 Ltd (2007) (28) WRN150 and Ndigwe v Nwude (1999) 11 NWLR (pt 626) 314 @ 331. PER SOTONYE DENTON WEST, J.C.A.

ESSENTIAL REQUIREMENTS FOR SUING IN A REPRESENTATIVE CAPACITY

In an action brought in a representative capacity, the Supreme Court held in Ofia v. Ejem (2006) 11 NWLR (pt 992) that the following are some of the essential requirements for suing in a representative capacity- i. There must be numerous persons interested in the case or the side to be represented, ii. All those interested must have the same interest in the suit i.e. their interest must be joint and several, iii. All of them must have the same grievance. iv. The proposed representative must be one of them and v. The relief sought must be in its nature beneficial to all the persons being represented. PER SOTONYE DENTON WEST, J.C.A.

REPRESENTATIVE ACTION: WHETHER IT IS ONLY A MEMBER OF A GROUP, FAMILY OR COMMUNITY THAT CAN DISPUTE, INTERVENE OR CHALLENGE THE PROPER REPRESENTATION OR THE CAPACITY IN WHICH THE PLAINTIFF/PLAINTIFFS SUED

In S.P.D.C.N LTD -VS- EDAMKUE (2009) 14 NWLR (PT.1160), PAGE 1 (OF PG.27-28, PARAS H-E) OGBUAGU JSC observed thus “as regards evidence of any authorization from the two families or communities of the 1st and 3rd sets of plaintiffs/respondents to initiate the two suits on their behalves/behalf, I hold that the appellant has no locus stand, to object to the said representation not being a member of those families or communities. It is settled that once the plaintiff/plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or community to sue in that capacity. It is only a member of that group, family or community, who can dispute, Intervene or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile for a defendant who is not one of those the Plaintiff/plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect the defendant adversely. See the case of CHIEF P. C. ANATOGU & ORS VS. ATTORNEY-GENERAL OF EASTCENTRAL STATE (1974) 4 ECSLR 36; (1976) 11 SC 109- ONYEMUZE & ORS v. OKOLI & ORS (1973) 3 ECSLR 150; ALHAJI/CHIEF OTAPO & ORS vs. CHIEF SUNMONU & ORS (1987) 2 NWLR (PTS8) @ 603; (1987) S SCJN S7; (1987)2 N5CC VOL 18 P. 677 and DANIEL AWUDU & ANOR v. RAUTHAN DANIEL & ANOR (2005) 2 NWLR (PT.909) 199 @ 222-223 C.A. citing the cases of ANATOGU vs. ATTORNEY-GENERAL OF EAST-CENTRAL STATE; CHIEF OTAPO vs. CHIEF SUNMONU (SUPRA); BUSARI vs. OSENI (1992) 4NWLR (PT.237) 557.” PER SOTONYE DENTON WEST, J.C.A.

REPRESENTATIVE: WHO IS A REPRESENTATIVE

In OLASA v. EZINMO (2003) 17 NWLR (PT. ) 129 @ 146 PARA C, the word representative was defined thus, ‘A representative is one who represents or stand in the place of another. He is a person empowered to act for one another.’ See also Barrister (Mrs.) PETERS PAM & ANOR v. NASIRU MOHAMMED & ANOR (2008) M1 FWLR PT 346 PER SOTONYE DENTON WEST, J.C.A.

REPRESENTATIVE ACTION: DUTY OF A PERSON/PARTY SUING AS A REPRESENTATIVE TO SHOW THAT HE HAS THE AUTHORITY OF THOSE HE IS REPRESENTATIVE

…the onus is on the person/party suing as a representative to show that he has the authority of those he is representing. PER SOTONYE DENTON WEST, J.C.A.

JURISTIC PERSON: WHETHER THE PERSON COMMENCING AN ACTION AS WELL AS THE PERSONS BEING REPRESENTED IN A REPRESENTATIVE ACTION MUST BE A JURISTIC PERSON; WHETHER THE NATIONAL UNION OF PENSIONERS KWARA STATE BRANCH IS A JURISTIC PERSON BY VIRTUE OF LAW AND FACT

The people been represented are juristic persons as is the person representing them. It is also trite that for a person to have the locus standi to bring or commence an action, as well as to defend an action, such a person must be a juristic person. The question now is can we say that the National Union of pensioners Kwara State Branch is a juristic person by virtue of law and fact? The answer is definitely No, and as such the Nigerian Union of Pensioners which is not a juristic person cannot enjoy juristic personality. It goes without saying that the Nigerian Union of Pensioners cannot obviously institute an action on behalf of the Pensioners as claimed by the Counsel to the Respondents. PER SOTONYE DENTON WEST, J.C.A.

JUSTICE

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI (HON) ISHOLA LAWAL
2. PRINCE AYOBAMIDELE AJIBOLA
3. USMAN KASIMU
4. JOSEPH KOLAWOLE
5. IMMAN GBAGBA
6. MRS MARIAM AKANBI
(FOR THEMSELVES AND ON BEHALF OF 9,024 KWARA STATE ACCREDITED PENSIONERS ENTITLED TO N1.68 BILLION WITHHELD PENSIONS AND GRATUITIES)Appellant(s)

AND

1. ATTORNEY GENERAL OF KWARA STATE
2. GOVERNOR OF KWARA STATERespondent(s)

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kwara State High Court of Justice (hereby referred to as the lower court) delivered on 1/6/09 by Hon. Justice E.B. Mohammed, in which the claimants were the appellants and the defendants, respondents.
The appellants on behalf of 9,024 Kwara State accredited pensioners sought for the following declarations and orders:
1. A DECLARATION that the defendants or any of their agents or assigns cannot validly withhold or alter the Claimants pensions and gratuities to their disadvantage, as such withholding act of the claimants pensions and gratuities arrears is in contravention of section 10 of the Kwara State Pensions and Gratuities Law, 2008.
2. A DECLARATION that the unilateral stoppage, non-payment and deduction of 50 percent of Kwara State 9,030 accredited pensioners N1.68billion pensions and gratuities arrears in contravention of section 210 of the Constitution of the Federal Republic of Nigeria and Section 10 of the Kwara State Pensions and Gratuities Law 2008, is illegal, null, void and of no effect whatsoever.
3. AN ORDER mandating the payment forthwith of the claimants N1.68 billion pensions and gratuities arrears illegally withheld by the defendants and/or any of their agents.
4. AN ORDER of injunction restraining the defendants, their agents or assigns from further act of withholding, deducting or stopping payment of the claimants pensions and gratuities in total disregard of the statutory prescription in Kwara State Pensions and Gratuities Law, 2008.
The appellants vide a Motion EX Parte dated 1/9/08 sought for the following reliefs and grounds.
(1) AN ORDER of this Honourable Court granting leave to the claimants herein to bring this action in a representative capacity; for themselves and on behalf of 9,024 Kwara State Government accredited pensioners entitled to N1.68 billion withheld pensions and gratuities arrears.
(2) AN ORDER deeming the originating processes filed, in a representative capacity, as properly filed and served, the necessary filling fees having been paid.
(3) AND for such further order(s) as the Honourable Court may deem fit to make in the circumstances of this humble application.
GROUNDS OF THE APPLICATION
1. The Claimants herein are 9,030 pensioners accredited by Kwara State Government is entitled to N3.3 billion for settlement of their pensions and gratuities arrears in between 1976 and 2007.
2. The Claimants have the authority of all the other 9,024 pensioners to institute this action on their behalf.
3. It will be in the interest of Justice to grant this application.”
The learned trial judge granted the orders sought above, there after the respondents filed a counter-affidavit and a preliminary objection dated 23/2/09 seeking for the following reliefs:-
“(1) AN ORDER dismissing and/or striking out the claimants’ suit for want of jurisdiction on the grounds set out hereunder.
(2) AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance of this case.
GROUNDS OF OBJECTION
a. The Claimants instituted this action on 2nd September 2008 over an alleged unilateral stoppage, non-payment and deduction of 50 percent of Kwara State 9,030 accredited pensioners N1.68 billion pensions and gratuities arrears.
b. The action of the claimant was a result of an agreement between the State government and the Nigeria Union of Pensioners (exhibit MOJ 1 of the counter-affidavit against originating summons) dated 16th April 2008.
c. The claimants suit is statute barred as it was brought three months next after the act of exhibit MOJ 1 an agreement signed by the Head of Service of Kwara State in exercise of his duty as a public officer.
d. The claimants do not have the authority of the Nigeria Union of Pensioners, Kwara State Chapter/Secretariat to institute this action.
e. The claimants do not have the authority of the other 9,024 pensioners they allegedly claimed to represent.
f. The Claimants lack the requisite locus-standi to institute this action.
g. This Honourable Court lacks the requisite competence and/or jurisdiction to hear and determine the claimants’ suit as it is presently constituted.
The appellants on their own vide the order of the honourable court brought a motion for judgment dated 14/1/09 seeking for:
“AN ORDER of this Honourable Court entering final judgment in favour of the Claimants/Applicants as per their claims, contained in the originating summons.
AND for such further order(s) as the Honourable Court may deem fit to make in the circumstances of this humble application.”
GROUNDS OF THE APPLICATION
1. The court granted the Claimants/Applicants leave to bring and/or prosecute thus suit in representative capacity and the Claimants/Applicants originating processes was deemed properly filed on 20th October, 2008.
2. The originating processes were duly served on the defendants/respondents on 20th October, 2008 in accordance with the rules of the Honourable Court.
3. The defendants/respondents neglected or failed to file any defence contrary to the rules of this Honourable Court.
4. The defendant is not interested in defending the suit.
This led to the judgment of the trial court whereby it stated inter alia:
“on the whole, I find that the claimants have not proved or established that they have the authorization or authority of substantial number of the other 9,024 pensioners purportedly represented in this case and by the nature of their claim, this cannot separate or severe their claim thus this suit cannot enure in their favour hence the defendants’ preliminary objection succeeds and it is hereby sustained. Consequently for all the above reasons this suit is hereby struck out for lack of authority or authorization of the parties sought to be represented.”
The appellants not being satisfied with the decision of the lower court filed a Notice of Appeal dated 8/6/09 with the following grounds:
“(1) The learned trial judge erred in law when he misconstrued the purport of order 14 rules 12 and 13 of the High Court (Civil Procedure) Rules 2004 which deals with the institution of a representative action by numerous persons, and such misconception led him to assume the power of judicial review, in his judgment, over his earlier ruling or decision which has settled the issue of parties representation.
(2) The learned trial judge erred in law when he struck out the entire case before him simply because the six competent claimants whose names were mentioned and properly delineated in the originating process, did not specifically itemize their claims in contradistinction to that of others whose representation in the said originating process was struck out.
(3) The learned trial judge erred in law, and such error occasioned a miscarriage of Justice, when he considered and sustained the defendants/respondents preliminary objection which attacked the competency of the action based on an issue of Claimants/Appellants representative capacity through which they Filed and prosecuted their case and that of 9,024 other pensioners.
(4) The learned trial judge erred in law, and such error occasioned a miscarriage of Justice, when he merely dealt with the preliminary objection in his judgment and totally refused to deal with the main constitutional issue that arose for determination in the substantive case; and by such conduct leaves the main issue and any other ancillary issue(s) undetermined and in abeyance for appellate courts consideration and determination.
(5) The learned trial judge erred in law, when he refused to hear and determine the Claimants/Appellants motion on notice dated and filed 13th February 2009, wherein the Claimants/Appellants sought for an order of the court mandating the defendants/respondents to bring a Bank Draft in the sum of N1.68 billion, the subject matter of this suit, into the court for it to be deposited into an interest yielding account pending the final determination of the suit, leading to this appeal.
The two parties filed their different briefs. The 1st and 2nd respondents brief of argument was deemed properly filed on 9/03/10, while the appellants reply brief of argument was deemed properly filed on 19/04/10.
The appellants counsel T.O.S. Gbadeyan (mni) adopted the Appellants brief of argument dated 21/10/09 and reply brief of argument dated 1st April 2010 on the 19/04/10, while the Respondents counsel M. A. I Akande (ssc) Pg-7
MOJ Kwara State, adopted the Respondents brief of argument dated 5/3/10 on the 19/04/10.
The Appellants raised the following issues to be determined by this court:
(1) Whether the trial court, pursuant to the grounds of objection in the defendants/respondents preliminary objection, has the power of judicial review under the Kwara State High Court (Civil Procedure) Rules and any other law whatsoever, over its decision delivered on 20th October, 2009, by which he granted the application for leave to commence the action leading to this appeal in a representative capacity. (Grounds 1 and 3).
(2) Whether it was right and justifiable for the trial court to have suo motu, struck out the claimants/appellants action as it did, without affording then, the processes amendment right; which are duly guaranteed in their favour by the Kwara State High Court (Civil Procedure) Rules (ground 2).
(3) Whether the trial judge was right In refusing to hear and determine the pending claimants/appellants motion dated and filed on 13th February, 2009, before and during his ruling judgment delivered on 1st June, 2009 and whether such refusal to hear the pending application amounts to a denial of the claimants/appellants constitutionally guaranteed right to fair hearing pursuant to section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria (ground 5).
(4) Whether the trial court was right when I, merely deal, with the settled issue of representative capacity challenged afresh by the defendants/respondents in their preliminary objection and did not bother to address in its ruling/judgment, the main constitutional issue raised in the substantive action and well addressed by counsel before it; and whether the court of appeal is statutorily empowered to hear and determine such issue or action in the interest of Justice (ground 4).
The respondents on their own raised the following issues for determination:
(1) Whether from the gamut of the affidavit evidence before the trial court, the appellants have the locus standi to institute a representative action for and on behalf of the alleged 9,024 Kwara State pensioners.”
(2) Whether the learned trial judge having granted leave to the appellants to commence a representative action is functus officio from considering the issue of locus standi of the appellants to institute a representative action, when same was raised and challenged by the respondents.
(3) Whether the learned trial judge having found merit in the respondents preliminary objection need to consider the substantive suit or any other application before him.
For the purpose of the resolution of this appeal, this court shall be adopting the issues as raised by the appellants as same are found to encapsulate the issues also raised by the respondents. Issues one and two of the appellants will be taken together with the respondents issues one and two, while the Appellants issues three and four will be resolved against along with respondent’s issue three.
ISSUES NO. 1 & 2
Whether the trial court, pursuant to the ground, of objection in the defendants/respondents preliminary objection, has the power of judicial review under the Kwara State High Court (Civil Procedure) Rules and any other law whatsoever, over us decision delivered on 20th October, 2009, by which he granted the application for leave to commence the action leading to this appeal in a representative capacity. (Grounds 1 and 3).
T.O.S. Gbadeyan mni, learned counsel to the appellants argued on issue 1 that Order 14 Rule 13 of the Kwara State High Court (Civil Procedure) Rules, 2005 is expedient for the purpose of efficient procedure, that one or more persons be appointed to represent that person or class or members of the class and that the decision of the court in the proceedings shall be binding on the person or class of persons so represented. The learned counsel tacitly argued that the above cited provision is radically different from Order iv Rule 3 of the Eastern Nigerian High Court Rules, that rather the intendment is similar to Order 14 Rules 13 of the Kwara State High Court (Civil Procedure) Rules 2005 and that this same provision was juxtaposed in Mba Nta v. Ede Nwede (1972) 5 SC 156 @ 174 to the extent that, the authority to represent at all times, lies with the court and that it does not lie in the mouth of the defendants/respondents to complain that the other 9,024 pensioners represented by the claimants/appellants herein would have been included in the scope of judgment or did not agree to the action; More also, when the authority to commence the action leading to this appeal in a representative capacity has been given by the court.
Appellants counsel further argued that, it is trite that once a court has given a final decision and necessary consequential orders in a matter presented before it for adjudication, it becomes functus officio and has no jurisdiction thereafter to review or vary the decision even if it realizes afterwards that the decision is manifestly wrong, the only exception being its power to correct typographical error or accidental slips under the slip-rule, he cited the Supreme Court decision of Nigerian Army v. Iyele (2008) 7 – 12 SC 35 @ 48 – 51 to support his position. He similarly cited the cases of Aron v. Fassassi (No.4) (1987) 3 NWLR (pt.59) 42 @ 4 – 44 on the same principle.
In this argument, the learned counsel submitted that since it was the lower court that granted the order to bring the action in a representative capacity as prayed, the court cannot reopen the matter or review itself even if the evidence upon which it acted was wrong.
He then submitted that the authority upon which representative action is granted is founded on, or is derived from the appropriate rules of court and that the court order to sue in representative capacity leading to this appeal at all times rest with the court and not the respondents or any other person.
He further submitted that the court having granted the order to bring the action in a representative capability as prayed cannot reopen the matter or review itself even if the evidence upon which it acted was wrong. The court is functus officio and therefore cannot vary the form of its earlier order and that assuming the appellants sued in a representative capacity without the requisite authority, that the court owes them the duty to amend the capacity in which it was brought so as to bring same in line with the evidence; and he further argued that courts are enjoined to do substantial Justice and depart from technicalities, he cited the case of Abubakar v. Yaradua (2008) 1 SC (Pt.11) 77 @ 122 to buttress his position.
On this issue, the learned counsel further argued that the order of striking out made by the judge amounts to reviewing his earlier order granting leave to the appellants to bring the action in a representative capacity and prayed that this court should resolve this issue in favour of the appellants.
As I earlier on stated, the appellants’ issue two will be reviewed with their issue one, this is because the respondents argued their grounds 1, 2 and 3 of the ground of appeal together while the appellants split theirs.
On issue 2, which is whether it was right and justifiable for the trial court to have suo motu, struck out the claimants/appellants action as it did, without affording them the processes amendment right; which are duly guaranteed in their faovur by the Kwara State High Court (Civil Procedure) Rules (ground 2). Deji Gbadeyan Esq. stated that Order 28 Rule 1 of the Kwara State High Court (Civil Procedure) Rules 2005 provide that a party may amend his originating process and pleadings at any time before judgment. He cited the judicial authority of Bank of Baroda v. Iyalabami & Co. Ltd., (2002) 7 SC 21 @ 50 – 51.
Flowing from his argument, he posited that it is trite that on no account should the court raise an issue suo motu and decide the matter before it on that point without allowing the parties the opportunity of addressing the court on the issue. He cited the judicial authorities of Abimbola v. Abatan (2001) 4 SC (pt.1) 64 @ 73/74 and Oje v. Babalola (1991) 4 NWLR (Pt.185) 267 @ 280 to support his position.
He then submitted that the trial judge ought to have amended the capacity in which the suit was brought so as to bring it in line with evidence, notwithstanding whether or not an application for such amendment had been applied for and obtained, the Judicial authority of Re-Adeosun (2001) 4 SC (Pt.1) 41 @ 61 was cited to support his position.
Learned counsel further contended that the failure of the trial court to do same infringed on the appellants’ right as enshrined under Order 28 Rule 1 of the Kwara State High Court (Civil Procedure) Rules 2005. That in the alternative, after the ruling denying the appellants the earlier on granted leave to represent the other 9,024 pensioners, the court should have adjourned to another date for it to be addressed on whether there is still a sustainable cause of action instead of striking out the appellants action failure of the trial court to so do had led to the denial of the appellants’ constitutional right to fair hearing. He cited the case of Oje, Babalola (supra) to support his argument.
On another leg, the learned counsel argued that, the trial court raised the issue of lack of sustainable cause of action sue motu without giving the appellants the opportunity of addressing the court on that point and that amounts to breach of the appellants’ right to fair hearing.
He thereafter urged this court to resolve this issue two in favour of the appellants against the respondents.
The 1st and 2nd respondents counsel, M. A. I Akande, commenced issue one by drawing the attention of the trial court to some salient facts and documents that were before the trial court including the affidavit in support of the motion ex parte dated 1st September, 2008.
The 1st and 2nd respondents counsel further stated that the 1st Appellant deposed to an affidavit in support of the said motion ex parte dated 1st September 2008 claiming that the six (6) Appellants herein instituted the action in a representative capacity for themselves and on behalf of other 9,024 Kwara State accredited pensioners entitled to the sum of 1.68 billion naira withheld pensions and gratuities arrears. The 1st and 2nd respondents counsel referred this court to paragraph 1 of the affidavit in support at page 3 of the record of appeal.
The learned Counsel further submitted that the six appellants counsel deposed to the fact that they have the authority of all the other pensioners to institute this action on their behalf, claiming to have letters from Nigeria Union of Pensioners, Kwara State Branch authorizing them to institute this action without exhibiting any such letter. He pointed the direction of this Honourable Court to paragraph 3 of the affidavit in support at page 3 of the record of appeal.
The 1st and 2nd respondents counsel, further submitted that it was on the strength of the aforementioned affidavit in support of the motion exparte, that the trial court on 20th October, 2008 granted the appellants leave to institute the action before it in a representative capacity. The learned counsel referred this court to page 174-175 of the record of appeal.
The respondents counsel further stated that upon becoming aware of this action, the Nigeria Union of Pensioners, Kwara State Branch, wrote a letter dated 22nd October, 2008 to the 2nd respondent appreciating its concern for the welfare of pensioners and most importantly disassociated itself from the appellants.
The 1st and 2nd respondents counsel referred the learned trial judge to exhibit MOJ 2 at page 105 of the record of appeal. The content of the aforementioned letter was wildly reported in the newspaper including The Herald Newspaper of 14th November, 2008. The 1st and 2nd respondents further referred this court to exhibit MOJ 3 at page 108 of the record of appeal.
The learned counsel, on behalf of the respondents, challenged the action of the appellants and promptly filed their counter-affidavit to the Appellants affidavit in support of the summons. The 1st and 2nd respondents counsel, referred the learned trial court to paragraphs 4, 6, 7 and 8 of the above mentioned counter affidavit at page 99-100 of the record.
The learned Counsel on behalf of the respondents thereafter raised a preliminary objection challenging the competence of the action on various grounds, including the ground that the appellants lack the requisite locus standi to institute this action because they do not have the authority of the Nigeria Union of Pensioners and the 9,024 pensioners they allegedly claimed to represent. The 1st and 2nd respondents counsel referred the honourable court to pages 110-111 of the record of appeal.
The respondents counsel further submitted with respect, that it is on the premise of the facts contained in paragraphs 4.02 – 4.10, that the Appellants lack the requisite locus standi to institute a representative action leading to this appeal for and on behalf of the alleged 9,024 pensioners.
The 1st and 2nd respondents counsel, submit most humbly that the Appellants failed to place before the trial court sufficient facts and material that they have the authority of the 9,024 pensioners they allegedly represented in the action. The only corporate body/labour union saddled with the responsibility of protecting the interest of the pensioners in Kwara State is the Nigeria Union of Pensioners, Kwara State Branch who disclaimed and disassociated themselves from the Appellants action. The 1st and 2nd respondents counsel referred this court to exhibits MOJ 2 and MOJ 3 at pages 105 – 109 of the record of appeal.
The 1st and 2nd respondents counsel further submitted that there are sufficient facts before the trial court that the Nigeria Union of Pensioners, Kwara State Branch at its meeting held on 4th September, 2008 disclaimed the Appellants and even called them a ‘faction’ of the union. The 1st and 2nd respondents counsel, referred the learned trial judge to page 2 of the minutes of the Nigeria Union of Pensioners (NUP) State Council meeting (exhibit MOJ 4) at page 134 of the record of appeal.
The 1st and 2nd respondents counsel queried, that in view of the above, how can the Appellants claim to represent a total sum of 9,024 pensioners when the labour union representing them has disassociated itself from the action?
The 1st and 2nd respondents counsel urged the learned trial judge to answer the question in the negative and submitted that the appellants cannot, so to speak, be more catholic than the pope. The 1st and 2nd respondents counsel further submitted that the Appellants cannot institute or maintain a representative action for and on behalf of a whole 9,024 pensioners without the authority, consent, or even in the absence of the Nigeria Union of Pensioners, which is the only body saddled with the protection and promotion of the interests of the pensioners in Kwara State. He cited the case of Olasa v. Ezimuo (2003) 17 NWLR (PT.848) 129 at p. 146, para C. to buttress his point.
The 1st and 2nd respondents counsel further submitted that the 1st Appellant at paragraph 1 of the affidavit in support of the originating summons at page 21 of the record deposed thus:
“That I am the 1st claimant, who like the other five (5) claimants, brought this action in a representative capacity for ourselves and on behalf of other 9,024 Kwara State accredited Pensioners entitled to N1.68 billion withheld pensions and gratuities.”
The 1st and 2nd respondents counsel submitted that the above deposition is not enough to show that the claimants were authorized by the aggrieved 9,024 pensioners (if any), particularly in the face of paragraphs 9, 11, 12 and 13 of the counter-affidavit against the originating summon and Exhibits MOJ 2, MOJ 3 and MOJ 4. He referred this Court to pages 99-101, 105-107, 108-109 and 133-138 of the record of appeal.
The 1st and 2nd respondents counsel, further submitted that there is enough material evidence aside depositions in the respondents counter affidavits to show that the appellants lack the authority of those they allegedly represented or at best, the interests of the 5 appellants and those allegedly represented are not the same.
The 1st and 2nd respondents counsel referred this court to the content of exhibit MOJ 2 (i.e. the letter titled ‘Appreciation, Gratitude and Commendation on the payment of 50% of 30%, 150% and 142% arrears of pension increases to Kwara State Pensioners’ in which herein the Nigeria Union of Pensioners Kwara State Branch) expressed its gratitude to the 2nd respondent and also disassociated themselves from the Appellants) at pages 105-107 of the record, MOJ 3 (i.e. the Herald Newspaper under caption ‘Kwara Pensioners disown rebel group over arrears’) at pages 108-109 of the record and MOJ 4 (i.e. minutes of the NUP State council meeting held on 4th September, 2008, wherein the Nigeria Union of Pensioners disassociated themselves from the appellants.
The 1st and 2nd respondents counsel further submitted that it is settled law that in a representative action, the interests of persons representing and those of the persons represented must be the same. He cited the case of Ejezie v. Anuwu (2008) 6 MJSC Vol 6.P 89 particularly at page 105 to buttress his point.
The 1st and 2nd respondents counsel submitted that the appellants plus the 9,024 pensioners they claim to represent equals 9,030 pensioners while those that consented to this law suit and indeed paid for it are 1,091 pensioners, he referred this court to pages 146-167 of the record.
The 1st and 2nd respondents counsel, in the light of the above, submitted that the above arithmetic clearly reveals that the appellants lack the authority and consent of 7,939 pensioners they claim to represent. He cited the case of Ejezie v. Anuwu (supra) to buttress his point. The respondents counsel further stated that assuming without conceding that the appellants have the authority of the 9,024 Kwara State pensioners they allegedly represented, the appellants did not however state the amount each and every one of them is entitled to, to assist the court in granting their claims.
The respondents counsel therefore urged this Court to resolve this issue against the appellants and affirm the decision of the trial court that the appellants have not proved or established that the authorization or authority of the substantial number of the other 9,024 pensioners are purportedly represented before this court. The respondents’ counsel urged this court to decide issue 1 in their favour.
The appellants in their reply on point of law to the respondents issue 1 as framed by the respondents submitted that the issue is not distilled from grounds 1, 2 and 3 of the appellants Notice and Ground of Appeal and prayed this court to strike out respondents issue 1.
The 1st and 2nd respondents counsel, commenced issue No. 2, by referring to the motion ex parte filed by the appellants before the trial court on 1st September, 2010. He further submitted, that it was premised on the above, that the trial judge in granting the application held that leave is granted to the claimants to bring this action against the defendants in a representative capacity.
The 1st and 2nd respondents counsel further stated however, that on the strength of the letter written by the Nigeria Union of Pensioners, Kwara State Branch disassociating it from the representative action filed by the appellants challenged the propriety of the suit leading to this appeal. He referred this court to exhibit MOJ 2 at pages 105 – 107 of the record and the respondents preliminary objection dated 23/02/2009 at page 5 110 – 111 of the record.
The 1st and 2nd respondents counsel further submitted that the trial court in its considered ruling of 01/06/2009 upheld the respondent preliminary objection and struck out the appellant’s suit.
The respondents counsel submitted that the order of the trial court of 20/10/2009 granting the leave to the appellants to commence representative action having been an ex parte order cannot by any stretch of imagination, be regarded as a final ruling capable of estopping the trial court from considering the issue of representative capacity of the appeal.
He cited the case of Thomas v. Aderinokun (2008) All FWLR (pt 440) 657particularly at page 670 paragraph E-F.
The respondents counsel, urged the learned trial judge to resolve this issue in the respondents favour and uphold that the learned trial judge, action having granted leave to the appellants to commence a representative action, is not functus officio from considering the issue of locus standi of the appellants to institute a representative action, when same was raised and challenged by the respondents.
On the respondents’ issue 2, the appellants counsel argued on point of law that the respondents have argued and formulated issue on grounds 1, 2, and 3 of the Notice of Appeal cannot give rise to two or more issues. He cited the cases of Ontrec Energy v. Transport International Bank Ltd. (2008) 12 SC (Pt.11) 240) @ 270 and that issue two is superfluous unquantifiable, invalid and liable to be struck out, he cited the case of Olaosebikan v. Williams (1996) 5 NWLR (Pt.449) 437.
Lastly on issue 2 of the respondents, appellants counsel replied on point of law that the issue of locus standi of appeal and he prayed this court to strike out the issue as formulated. He cited the cases of Onexel Energy v. Transport International Bank (Supra), Mairo v. Laushi (1993) 4 NWLR (pt.288) 423 0 429, Adelusoza v. Akande (2004) S SC (pt.11) 71 @ 77, Olaosebikan v. Williams (1996) 5 NWLR (Pt.449) 437.
Resolution of issues 1 & 2 of the appellants and issues 1 and 2 of the respondents.
Before delving into the resolution of the above mentioned issues, order 14 Rules 12 and 13 provides thus.
(1) where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.
(2) Where there are numerous persons having the same interest in one suit and they seek to defend the action, the court may allow one or more of such persons to defend the action on behalf or for the benefit of all persons so interested.
Rule 13(1) where in any proceedings concerning
(a) the administration of an estate; or
(b) property subject to trust; or
(c) land held under customary land as family or community property; or
(d) the constitution of any written instrument, including a statute, the court is satisfied that-.
i. the person, the class or some members of the class interested cannot be ascertained or cannot
readily be ascertained;
ii. The person, the class or some members of the class interested if ascertained cannot be found;
iii. Though the person or the class and the members thereof can be ascertained and found.
It is expedient for the purpose of efficient procedure that one or more persons may be appointed to represent those persons, or class, or member of the class, the court may make the appointment. The decision of the court in the proceedings shall be binding on the person or class of persons so represented.
(2) Notice of appointment made by the court under this rule and all processes filed in court shall be served on every person so appointed.
(3) If in any proceedings mentioned in sub rule (1) several persons having the same interest in relation to the matter to be determined attend the hearing by separate legal practitioners, then, unless the judge considers that the circumstances justify separate representation, not more than one set of costs of the hearing shall be allowed to these persons, and the judgment or order shall be framed accordingly.
(4) In this rule, the word “class- includes the persons recognized by customary law as members of a family or as members of a landing owning community.
Similarly, it would be in order to produce Order 14 Rule 2 thus;
“Where in commencing an action any person has been wrongly or improperly included as claimant or where it is doubtful whether it has been commenced in the name of the right claimant, the court may order the substitution or addition of any other person as claimant on such terms as may be just.”
The above quoted provisions will be handful later in this judgment. On whether issue 1 of the respondents was deduced from the grounds of appeal as formulated by the appellants, I have taken my time to carefully go through all the grounds and particulars of appeal filed in this court most especially grounds 1, 2 and 3 from which respondents issue one was couched, but I did not see from any or all of the grounds of appeal from where the respondent’s issue Number one was formulated.
Respondents’ issue one is:
“Whether from the gamut of the affidavit evidence before the trial court, the appellants have the locus standi to institute a representative action for and on behalf of the alleged 9,024 Kwara State pensioners.”
This issue is distilled from grounds 1, 2 and 3 of the notice of appeal.
When issues formulated by a party are not rooted in the grounds of appeal filed, the court will have no option than to strike it out.
Niki Tobi JSC, in Okolo v. UBN (2009) 3 NWLR (pt 859) held inter alia thus:
“It is the law that issues must be formulated from grounds of appeal. In other words, issues not formulated from the ground of appeal will go to no issue.
Issues should not be framed in the abstract but in concrete terms arising from and related to the grounds filed which represent the questions in controversy in the particular appeal.”
Similarly, Ogbuagu JSC in Orexel Energy & Natural Resources Ltd. v. Trans Int’l Bank Ltd. (2008) 12 SC (pt 11) 240 opined thus:
“It has been stated and restated in a line of decided authorities by this court and the Court of Appeal, that any issue or issues not formulated or distilled from a ground of appeal or covered by a ground of appeal is incompetent and will be struck out.”
This court will not hesitate to strike out issue one of the respondents which does not have its root in the grounds of appeal filed. See Nnaji v. Ede (1996) 8 NWLR (pt 466) 332 @ 337 @ 339
Now on the consideration of the merit of the appellants issue 1 AND 2 which I have earlier on reviewed in a nutshell, this issue deals with whether the lower court can review itself most especially after granting leave to the appellants to commence action in representative capacity. The argument of the respondents Counsel on issue 2, with the authorities cited will not be of assistance and as such same will be discountenanced.
It is trite that a court of law cannot review or over rule itself except if it is a typographical error which will not alter the decision. In Nigerian Army v. Iyela (2008) 7-12 SC 35 0 48-51, the erudite jurist Tabai JSC held that
“It is settled law that, once a court has given a final decision on a matter placed before it for adjudication, it becomes functus officio and is precluded from reviewing or varying the term of the judgment or order apart from the correction of clerical mistakes or accidental slips. This principle has been explained in several cases.
Firstly, it is well settled that every judgment takes effect on pronouncement. This principle was articulated in Intercontractors Nigeria Ltd., v UAC of Nigerian Ltd (1988) 1 NSCC 737 @ 752, BANK OF West Africa UNPC Ltd. (1962) LLR 31, Olayinka Elusanmi (1971) 1 NWLR 227, in the English case of Thynne v Thyme (1955) 3 All ER 139 @ 146, the Court of Appeal; person Mofis L.J. stated the principle thus:-
“Where a court has decided an issue and the decision of the court is very embodied in some judgment or order that has been made effective, then the court cannot reopen the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellant jurisdiction as may apply. But if a case arises therein the interest of accuracy it seems desirable to amend some part of a judgment other than it’s operative and substantive part it would seem to be regrettable if the inherent power of the court were limited or confirmed. ”
A court becomes automatically functus officio in matters it gives a decision. To review such decision is an absolute abuse of power and the only body that can review such is the appellate court. A court cannot re-open the matter it has initially dealt with.
The trial court having granted the order to bring the action in a representative capacity as prayed, cannot reopen the matter or review itself even if the evidence upon which it acted was wrong. The lower court is functus officio and cannot vary the form of its earlier decision because it cannot sit on appeal on its own case.
The appropriate thing for the respondents to do is to appeal. The lower court was wrong to have struck out the order after granting the appellants leave to bring the action in a representative capacity.
In view of the above reasoning and other reasoning’s stated above, issue one is resolved against the respondents in favour of the appellants.
On issue two, which was similarly reviewed with issue one and two of the appellants on whether it was right and justiable for the trial court have suo motu, struck out the claimants/appellants action as it did without affording them the processes’s amendment right which are duly guaranteed in their favour by the Kwara State High Court (Civil Procedure) Rules.
From all the arguments coupled with statutory provisions as earlier on enumerated in Order 14 Rule 2 of the Kwara State High Court (Civil Procedure) Rules 2005, a party can amend it’s parties process subject to the leave of the court “the court may order the substitution or addition of any other person as claimants on such terms as may be just.’
From the above it is clear that the court had a right and power to suo moto order the substitution or addition of parties. This right, which is clearly the path of Justice, the lower court did not tread, but rather deemed it fit to strike out the suit without more.
It is also settled law that a court of law cannot raise a point suo motu no matter how clear it may appear to be and then resolve it one way or the other without hearing the parties see Oje v. Babalola (1991) 4 NWLR (pt.185) 267 @ 780 para E-G, Okafor v. Nnaife (1972) 3 ECSLR 261, Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566 @ 581 and Abimbola v Abatan (2001) 4 SC (pt 1) 64 @ 73-74.
The poser now is did any of the parties raise the point or issue of sustainable cause of action? The answer is NO, it was the trial court that raised the issue and resolved it the way it did without affording the parties opportunities to ventilate their own argument or position.
The attitude of a court raising issues suo motu without allowing parties to address it on the issue is a breach of the parties right to fair hearing and such action(s) have been condemned and I too add my voice to condemn such action. Shorn of any embellishment, the failure of the trial court to allow the parties before him to address him on the issue he raised suo motu renders the entire proceedings a nullity.
In view of the above, issue two of the appellants is resolved in their favour against the respondents.
ISSUE No. 3 &4
Issues 3 and 4 of the appellants
(1) Whether the trial judge was right in refusing to hear and determine the pending claimants/appellants motion dated and filed on 13th February, 2009, before and during his ruling/judgment delivered on 1st June, 2009 and whether such refusal to hear the pending application amounts to a denial of the claimants/appellants constitutionally guaranteed right to fair hearing pursuant to section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria (ground 5).
(2) Whether the trial court was right when it merely dealt with the settled issue of representative capacity challenged afresh by the defendants/respondents in their preliminary objection and did not bother to address in its ruling/judgment, the main constitutional issue raised in the substantive action and well addressed by counsel before it; and whether the court of appeal is statutorily empowered to hear and determine such issue or action in the interest of Justice (ground 4). will be taken together and in the same breath the respondents issue 3 will respond to it. The learned counsel to the appellants, TOS Gbadeyan mni, argued that a law court must make a pronouncement on every application which is before it and that failure to do so is a breach of fair hearing, he cited the case of in Afro-Con (Nig) Ltd v Co-op Ass of Prof Inc. (2003) 1 s.c. (pt.111) 1 @ 8, to buttress his point. He further contended that all proceedings which followed such a breach will be a nullity, he cited the case of Eke v Ogenda (2000) 11-12 SC 31 @ 41 to buttress his position. He continued his argument that even when a court arrives at a correct decision in breach of fair hearing, an appellate court will throw out the correct decision in favour of the breach of fair hearing; he cited the case of Orugbo v. Una (2002) 9-10 SC 61 @ 69 to support his contention and he prayed this court to resolve this issue in favour of the appellants.
On issue four, TOS Gbadeyan, learned counsel to the appellants argued that, the position of the law is that it is the duty of a court to deal with, consider and pronounce on all material issues before it, he referred the court to the case of Agbo v. Shade (2006) 1 SC (Pt.11) 73 @ 94. He further argued that, vide section 16 of the Court of Appeal Act, the court of appeal is empowered to ensure the determination of the real question in controversies and then given judgment or make the appropriate order, he referred the court the case of Lagga v. Sarbuna (2008) 6 – 7 SC (Pt.1) 101 @ 152-153, Oshoboja v. Amuda (1992) 6 NWLR (Pt.250) 690, Olalor v. Oboro (2001) 4 SC (Pt.1) 77 @ 79 and section 295(2) of 1999 constitution.
The learned counsel to the appellants submitted that the trial court ought to have determined the application one way or the other, he cited the cases of Agbo v. State (Supra) and Cappa & D’Aibeto Ltd v. Akindilo (supra) and since it failed, this court is enjoined to hear and determine same.
The appellants’ counsel took his time to re-argue his originating summons which was not considered by the trial court before the trial court struck out the originating summons based on the preliminary objection filed by the respondents. The learned counsel thereafter prayed this court to resolve this issue in favour of the appellants and grant all their reliefs claimed before the trial court. He further prayed that, this appeal be allowed.
Respondents issue 3
“Whether the learned trial judge having found merit in the respondent’s preliminary objection need to consider the substantive suit or any other application before him.”
The 1st and 2nd respondents counsel, commenced issue No. 3 by urging this Honourable Court to consider all the documents filed before the trial High Court, that is, the appellants summons dated 01/09/2008 at pages 18-70 of the record, Motion on notice dated 13/02/2010 at page 87 -92, Respondents Counter Affidavit of 06/02/2009 and its annexures at pages 99-110.
Notice of preliminary objection dated 23/02/2009 at pages 110-112, written address in reply to defendants preliminary objection dated 27/02/2009 at pages 123-130, respondents further counter affidavit of 02/03/2009 at page 131-138. Written address against the originating summons dated 02/03/2009 at pages 139-142, further affidavit in support of originating summons of 03/03/2009 at pages 142-167 and reply to defendants written address against the originating summons dated 04/03/2009 at pages 168-172 of the record.
The 1st and 2nd respondents counsel, referred this Honourable Court to page 179 of the record, in considering the totality of documents filed by parties before the trial court.
The 1st and 2nd respondents counsel further submitted, with due respect to the counsel to the appellants, stating that he cannot rightly complain about the failure of the trial court to consider his motion on notice dated 13/02/2009 as stated in ground 5 of the Notice of Appeal and paragraphs 6.11-6.14 of the appellants brief, which the respondents counsel referred to as an afterthought which can be akin to an attempt to dose the stable when the horse has bottled away.
The 1st and 2nd respondents counsel further submitted that the second leg for consideration is whether it was necessary for the trial judge to consider the originating summons having found merit in the respondents preliminary objection that the court lacked jurisdiction on the grounds adumbrated on the notice. He referred this court to pages 110-111 of the record.
The 1st and 2nd respondents counsel further submitted that the preliminary objection of the respondents dated 23/02/2009 challenging the locus stand, of the appellants on the ground that they lack the authority and consent of the Nigeria Union of Pensioners is jurisdictions! The respondents counsel therefore submitted that the court must first and foremost consider same before delving into the substantive matter notwithstanding that the two were taken together.
The 1st and 2nd respondents counsel further submitted that this honourable court has held severally on the propriety of hearing and determining the issue of jurisdiction first before considering any other application before the court. He cited the case of D.E.N.R. Ltd. v. Trans International Bank Ltd. (2009) All FWLR (pt.456) 1823 particularly at page 1849 paragraph E-H to buttress his point.
The 1st and 2nd respondents counsel finally submitted on issue No. 3, that in view of the above judicial authority, the trial court having found merit in the respondents preliminary objection need not be-labor itself with the merit or otherwise of the originating summons. He referred this court to the case of Ekeocha v Aria Taraonyenwa (2009) All FWLR (pt 456) 1960 particularly at page 1973 paragraphs E-F.
Resolution of appellants issues 3 and 4 and respondents issue 3.
The crux of this issue is whether the preliminary objection filed by the respondents, can determine the case in full. The purpose of preliminary objection is, if successful to terminate the hearing of the appeal in limine either partially or intoto. See Abia v CNSP 1 Ltd (2007) (28) WRN150 and Ndigwe v Nwude (1999) 11 NWLR (pt 626) 314 @ 331.
The question now is, will it be proper for the appellants case to be struck out based on the preliminary objection?
To start with, is it that the appellants have no cause of action or are they not representing the same group of people? In an action brought in a representative capacity, the Supreme Court held in Ofia v. Ejem (2006) 11 NWLR (pt 992) that the following are some of the essential requirements for suing in a representative capacity-
i. There must be numerous persons interested in the case or the side to be represented,
ii. All those interested must have the same interest in the suit i.e. their interest must be joint and several,
iii. All of them must have the same grievance.
iv. The proposed representative must be one of them and
v. The relief sought must be in its nature beneficial to all the persons being represented.
In S.P.D.C.N LTD -VS- EDAMKUE (2009) 14 NWLR (PT.1160), PAGE 1 (OF PG.27-28, PARAS H-E) OGBUAGU JSC observed thus “as regards evidence of any authorization from the two families or communities of the 1st and 3rd sets of plaintiffs/respondents to initiate the two suits on their behalves/behalf, I hold that the appellant has no locus stand, to object to the said representation not being a member of those families or communities. It is settled that once the plaintiff/plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or community to sue in that capacity. It is only a member of that group, family or community, who can dispute, Intervene or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile for a defendant who is not one of those the Plaintiff/plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect the defendant adversely. See the case of CHIEF P. C. ANATOGU & ORS VS. ATTORNEY-GENERAL OF EASTCENTRAL STATE (1974) 4 ECSLR 36; (1976) 11 SC 109- ONYEMUZE & ORS v. OKOLI & ORS (1973) 3 ECSLR 150; ALHAJI/CHIEF OTAPO & ORS vs. CHIEF SUNMONU & ORS (1987) 2 NWLR (PTS8) @ 603; (1987) S SCJN S7; (1987)2 N5CC VOL 18 P. 677 and DANIEL AWUDU & ANOR v. RAUTHAN DANIEL & ANOR (2005) 2 NWLR (PT.909) 199 @ 222-223 C.A. citing the cases of ANATOGU vs. ATTORNEY-GENERAL OF EAST-CENTRAL STATE; CHIEF OTAPO vs. CHIEF SUNMONU (SUPRA); BUSARI vs. OSENI (1992) 4NWLR (PT.237) 557.”
Looking at the aforementioned, did the appellants comply? The answer to this is that there is substantial compliance and that they instituted the suit for themselves and on behalf of 9.024 Kwara State accredited pensioners entitled to N1.68 billion withheld pensions and gratuities arrears. Then what is the name or names of the pensioners that do not want to be represented, I think that should be the most important thing the trial court should have considered, the mere fact that about 1,000 pensioners show financial interest is enough to show that, all the 9,024 pensioners have the same interest in the suit, they all have the same grievance against the respondents who deducted part of their pension and gratuity. The six representatives are part of them and the reliefs sought if granted will be beneficial to all the persons being represented. See in the cases of Chief Emmanuel Bello vs. Independent National Electoral Commission & 2 ors (2010) NWLR (pt 1196) page 342, Salisu vs. Odumade (2010) All FWLR (pt 514) page 15
The argument of the respondents will not hold any water, more especially the argument that the Nigeria Union of pensioners disassociating itself from the representative action leading to this appeal as stated in MOJ 2.
It is quiet disheartening and worthy of note that the Nigerian Union of Pensioners who indeed should be at the forefront of this action to fight for the right of these senior citizens who are struggling to enforce their rights before the law are now being embarrassed as it were by some unscrupulous members of the Nigeria Union of Pensioners who had indulged in not fighting for the suffering masses of their union but would rather be engaged in signing M. O. U as herein presented in their affidavits and counter affidavit.
I took judicial notice of the great number of the pensioners who were present in court. These were mainly elderly men and women. Most of these people in court were more like sixty years and above. These are indeed senior citizens of our great country who should be enjoying the rewards of having served their father’s land. Instead they were subjected to battle for their rights. Primarily they should be accorded fairness and or natural Justice, but they were obviously deprived by those who should be most concerned by their plight.
In the more advanced nations some laws have been put in place to care for senior citizens and pensioners, indeed, they are usually treated with outmost courtesy and their pensions are paid timeously. They also are granted certain privileges in the society and so they live very long Unfortunately the reverse is the case in our society. Pensioners of our great country are await their pensions for long and sometimes they transit from this world whilst waiting to be paid. Further even when they are alive they have to travel long distances to collect their pensions and gratuities. They are subjected to partial payments as it is being espoused herein and even are sometimes subjected to deprivations.
However equity will not suffer a wrong to be without a remedy and so recently in Nigeria, “the President of the country Dr Goodluck Jonathan said when he recently flagged off the payment of over N23billion arrears to about 115,000 military pensioners at the presidential villa, Abuja. He said the review was a constitutional matter and Government could not afford to fail in its implementation. The request made by the chairman of the MPB is obvious. We will make sure that we keep faith in that. We must not wait for people to go on strike before doing the correct thing. “We are happy that those days of pains for our pensioners are gone; that by pressing a button, people are paid”, Jonathan said. He noted that it was a great embarrassment to the nation to see those who signed up to serve the nation with their lives left to suffer pains and agony. The president also noted that the introduction of biometrics and other fraud preventing features in the payment of military pension would eliminate fraud. He urged the MPB to monitor the new system to guide against fraudsters, (as was reported in daily paper “THE NATION” vol. 5 No. 1434 Wednesday, June 23, 2010 page 6)
Consequently, I am of the view that one day instead of the appellants fighting their own battle in court, the respondents may invite their senior citizens to dinner.
Similarly, the appellants need not plead, depose or show the specific amount they are entitled to as benefit notwithstanding that they are entitled to different benefits. In a case of a representative suit, it is the party alleging that the representation was wrong that will have to prove otherwise and not to put the onus on the representatives of the group. Rather than strike out the matter for lack of authorization of the parties sought to be represented, the lower court should have availed itself of the provision of the Kwara State High Court Civil procedure law, which provides that the name and number of the parties can be amended to reflect the name(s) that can be established that are being represented. Striking out the matter at the trial court is wrong. See in the cases of Chief Emmanuel Bello vs. Independent National Electoral Commission & 2 ors (2010) NWLR (pt 1196) page 342, Salisu vs. Odumade (2010) All FWLR (pt 514) page 15 and ORDER 14 RULE 2 OF KWARA STATE CIVIL PROCEDURE RULES 2005.
In OLASA v. EZINMO (2003) 17 NWLR (PT. ) 129 @ 146 PARA C, the word representative was defined thus,
‘A representative is one who represents or stand in the place of another. He is a person empowered to act for one another.’
See also Barrister (Mrs.) PETERS PAM & ANOR v. NASIRU MOHAMMED & ANOR (2008) M1 FWLR PT 346
Though the onus is on the person/party suing as a representative to show that he has the authority of those he is representing. The people been represented are juristic persons as is the person representing them. It is also trite that for a person to have the locus standi to bring or commence an action, as well as to defend an action, such a person must be a juristic person. The question now is can we say that the National Union of pensioners Kwara State Branch is a juristic person by virtue of law and fact? The answer is definitely No, and as such the Nigerian Union of Pensioners which is not a juristic person cannot enjoy juristic personality. It goes without saying that the Nigerian Union of Pensioners cannot obviously institute an action on behalf of the Pensioners as claimed by the Counsel to the Respondents.
In view of this, I agree with the submission of the learned counsel to the claimants in this regard.
The counsel to the appellants further referred the court to Sec 15 of the Court of Appeal Act 2004 and requested the court to invoke same in the determination of the appeal. He did so rightly and thus I would proceed to invoke Sec 15 of the Court of Appeal Act which states as follows “The court of appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the court of appeal think fit to determine before final judgment in the appeal, and may make interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquires or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other direction as to the manner in which the court below shall deal with the case in accordance with the power of that court, or, in tile case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.” (sic)
In S.P.D.C.N. Ltd. v. Edamkue (Supra) Oguagu, JSC said, “even where a person is sued in a personal capacity instead of in a representative capacity, an appellate court, can in the interest of Justice, amend the plaintiff’s capacity to reflect the evidence and enter judgment for the plaintiff as representing his family or community. See the case of OSHUNTINDE & 7 ORS vs. AJAMOGUN (1992) 6 NWLR (Pt.246) 156; (1992) 7 SCNJ (Pt.1) 79 @ 114 – 115. In fact, in the case of PRINCE LADEJOBI & 2 ORS vs. OTUNBA OGUNTAYO & 9 ORS (2004) 7 SCNJ 298 @ 310-311, (2004) 18 NWLR (PT 904) 149 – per UWAIFO, JSC it was held that the law is that a person has the right to protect his family’s interest in a property or title and can sue for himself and on behalf of his family in a representative capacity. The case of SOGUNLE -VS- AKERELE (1967) NMLR 58; NTA vs. ANIGBO (SUPRA); MELIFONWU vs EGBUJI (1982) 9 SC 145 @ 159 and CHIEF ATANDA & ORS vs. AKUNYUN (stated therein as Olanrewaju) (1988) 4 NWLR (PT 89) 394 were therein referred to. (it is also reported in (1988) 10-11 SCNJ. 11). See also the case of COKER vs. OGUNTOLA & ORS (1985) 1 ALL NLR (PT 1) 278, (1985) 2 NWLR (PT.5) 87; ALHAJI GEGELE vs. ALHAJI LA YINKA & 6 ORS (1993) 3 SCNJ @ 45 reported as Layinka vs. Gagele (1993) 4 KLR 5(1993) 3 NWLR (PT 283) 518 and AWUDU & ANOR vs. DANIEL & ANOR (2005) 2 NWLR (PT.909) 199 @ 222-223C.A”
In a plethora of cases, the apex court concerned with doing substantial Justice applied the supreme court’s equivalent provision to Sec 16 of the court of appeal Act and held Per KATSINA ALU JSC as he then was thus “It is my view that the candidate for P.D.P. at the election was the appellant. His name was unlawfully removed. In the eyes of the law, he remained the candidate and this court must treat him as such. My view is that it was the appellant and not the 2nd respondent who must be deemed to have won the elections. The argument that the appellant must be held to his claims overlooks the fact that this court has the wide jurisdiction to give consequential orders and to grant reliefs which the circumstances and the Justice of a case dictate. Wherever Justice demands it, this court shall rise to do Justice without regard to technicality.
I ought not to make an order which does not address the grievance of a party before this court. The only way to accord recognition to his rights unlawfully trampled upon is to declares that the appellant and not the 2nd respondent must be deemed to have won the April 14 Gubernatorial Eton . See the cases of AMAECHI vs. INEC & 2 ORS (2008) 5 NWLR PT.1080 PAGE 227 AND OBI vs. INEC (2007) 7 SC PAGE 268.
In fact the claims of the appellants are protected under section 210 of the 1999 constitution This court ,s obliged where there is possible in fraction of the proven of the section to ensure that the constitutional provisions are upheld.
Section 210 of the 1999 constitution provides as follows
(1) subject to the provisions of subsections(2) of the section, the right of a pension in the public service of a staterto receive pension of gratuity shall be regulated by law,
(2) any benefit to which a pension is entitled in accordance with aor under such law as referred to in subsection (1) of this section shall not be withheld or altered to this disadvantages except to such extent as is permissible under any law, including the code of conduct.
(3) Pension shall be reviewed every 5 years or together with any state service salary reviewed whichever is earlier,
(4) Pension is respect of service in the service of a state shall not be taxed.”
Consequently this appeal is hereby found to be meritorious and therefore succeeds. In the circumstances, I am obliged to grant the prayers of the appellants as claimed in their appeal with the proviso, that the payment of the money by the respondent in the sum of N1.68 billion should be paid within six months from today 30th day of June 2010.
The disbursement should be made to the appellants and to all the 9,024 Kwara State accredited pensioners entitled to the N1.68 billion withheld pensions and gratuities. The disbursement should be supervised by Accountant-General of Kwara State who perhaps could be assisted by National Union of Pensioners Kwara state chapter with logical conclusion to all the pensioners whose claims are involved in this appeal.
There is no order as to cost.