A.G AKWA IBOM STATE & ANOR v. ETUKEYEN & ORS
(2020)LCN/13988(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/C/489/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
ATTORNEY GENERAL, AKWA IBOM STATE & ANOR APPELANT(S)
And
OBONG ASUQUO I. U. ETUKEYEN & ORS RESPONDENT(S)
RATIO
WHETHER OR NOT ALL PERSONS MAY BE JOINED IN AN ACTION AS CLAIMANT IN WHOM ANY RIGHT TO RELIEF IS ALLEGED TO EXIST JOINTLY
Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 reads thus:
“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.”
The Supreme Court interpreting a similar provision in the Oyo State High Court (Civil Procedure) Rules 1978 held in the case of Newspaper Corporation vs. Orie (1995) 1 SCNJ 218 at 220-221 that:
“The joinder of persons or parties in one action as Plaintiffs as well as the joinder of causes of action is clearly permissible.”
Provided:
i. The right to relief claimed in the suit must be vested in the Plaintiffs whether jointly or severally.
ii. The right to relief is in respect of or arises out of the same transaction or series of transaction.
iii. That if separate actions were brought by such persons, a common question of law would arise. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellants against the ruling of Hon. Justice M. M. Esowe sitting at the National Industrial Court of Nigeria Calabar Division in Suit No. NICN/UYO/03/2017.
The Respondent who were all retired Public Officers sued the Appellants as Defendants for their Pension rights under the Constitution of the Federal Republic of Nigeria 1999 (as amended) claiming reliefs as follows:
i. A declaration that the Defendants are bound to comply with the constitutional provision and review the pensions of the Claimants every five years or simultaneously with any review of emoluments in the state, whichever is earlier.
ii. A declaration that the Claimants are entitled to a review of their pensions every five years or simultaneously with the review of emoluments of the class of public Officers to which the Claimants belong – Secretaries to the State Government/Heads of Services/Permanent Secretaries.
iii. An order directing the defendants to review and pay the pensions of the Claimants who retired before 29th May, 1999 by 1013% for
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Secretaries to the State Government/Head of Services and 984.31% for Permanent Secretaries bringing them from what they earned as pensions prior to the SSG/2/2001 review to N160,383 monthly for Secretaries to the State Government/Heads of Service and N149,744 monthly for Permanent Secretaries from 29th May, 1999 to 31st December, 2003 with arrears thereof.
iv. An order directing the Defendants to review and pay the Pensions of the Claimants who retired prior to 29th May 1999 from N160,383 for Secretaries to the State Government/Heads of Service and N149,744 for Permanent Secretaries (which is what they should have earned as at 31st December, 2003 had their pensions been reviewed with the SSG Circular No. 2/2001) to N205,491 for Secretaries to the State Government/Heads of Services and N188,747 for Permanent Secretaries for the Head 1st January, 2004 to 31st May, 2007 with the arrears thereof.
v. An order directing the Defendants to review and pay the pensions of the Claimants who retired prior 29th May, 1999 from N205,491 for Secretaries to the State Government/Heads of Service and N188,747 for Permanent Secretaries to N684,463.38 for Secretaries to
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the State Government/Heads of Service and N626,056.81 for Permanent Secretaries for the period 1st June, 2007 to date of judgment with the arrears thereof and after Judgment for life.
vi. An order directing the Defendants to review and pay the pensions of the Claimants who retired between 29th May,1999 and 31st December, 2003 from what they earned to N205.491 for Secretaries to the State government/Heads of Services and N188,747 for Permanent Secretaries from 1st January, 2004 to 31st May, 2007 with the arrears thereof.
vii. An order directing the Defendants to review and pay to the Claimants who retired between 29th May, 1999 and 31st May, 2007, their pensions from N205,491 for Secretaries to the State Government/Heads of Service and N188,747 for Permanent Secretaries to N684,463.38 for Secretaries to the State Government/Heads of Service and N626,055.81 for Permanent Secretaries for the period 1st June, 2007 to date of Judgment with the arrears thereof and after date of Judgment for life.
viii. Damages of N5,000,000 (Five Million Naira) for each of the Claimants for wrongfully denying them and withholding their pension rights.
ix. Cost of
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this litigation being N2,000,000.00 (Two Million Naira).
By a Notice of preliminary objection dated 20th February, 2017 and filed on 21st February, 2017, the Appellants as Defendants raises a preliminary objection on the grounds.
1. That the Claimants/Respondents lack the collective right to institute this action as a group.
2. That each of the Claimants/Respondents has separate cause of action against the Defendants/Appellants.
In the ruling of the trial Court contained on pages 189-195 of the record, the learned trial Judge held inter alia at page 194 of the record thus:
“On the propriety or otherwise of the Claimants filing this suit jointly, the provisions of Order 13 Rule 1 of the National Industrial Court (Civil Procedures) Rules 2017 are manifestly clear on this issue and there is no ambiguity. For the avoidance of doubt the provision of Order 13 Rule 1 are here under reproduced.
“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
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relief as the Claimant may be entitled to without any amendment.”
By the provision of the said Order, the Claimant herein have the right to either file their action individually or jointly provided the Court has the jurisdiction on the matter and all the Claimants have a connection link to the subject matter, I so hold — from the facts before this Honourable Court, the subject matter of this suit pension funds or the Claimants to which they all have a connection I link and it is all that have been said above the preliminary objection of the Defendants/Applicants lacks merit and same is hereby dismissed.”
Dissatisfied with the above Ruling, the Appellants filed a Notice of Appeal containing a sole ground of appeal in this court on 14th November, 2018.
Appellant’s Brief of Argument is dated 9th January, 2019 but filed on 11th January, 2019.
Respondent’s Brief of Argument is dated 29th April, 2019 and filed on 7th May, 2019. It is deemed filed on 20th January, 2020. Learned Counsel for the Appellants nominated a sole issue for determination of the appeal. It is
“Whether the lower Court was right in assuming
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jurisdiction to entertain the suit in view of the facts that the Respondents brought the suit jointly as a group”
The Respondents also formulated a sole issue as follows:
“Whether the parties as constituted deprives the Court of jurisdiction.”
On the sole issue, Learned Attorney General of Akwa ibom State for the Appellants submitted that the trial Court lacks the jurisdiction to entertain the case because each of the Respondents has personal/individual right to establish and as such not proper parties. He submitted that for a Court to be competent and have jurisdiction over a matter proper parties must be identified. In other words, before an action can succeed, the parties to it must be shown to be proper parties to whom rights and obligations arising from the cause of action attach. That, where the proper parties are not before the Court then the Court lacks jurisdiction to hear the suit.
He referred to the cases of Best Vision Cent Ltd vs. U. A. C. M. P. D C. Plc (2003) 13 NWLR (pt. 838) PG 594, AMADIUME VS. IBOK (2006) NWLR (Pt. 975) PG 158 at 173.
He submitted that where the parties have personal right to sue,
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each of the parties has a cause of action to sue and must bring a separate action to establish same.
He referred to the case of BOSSA VS. JULIUS BERGER (2005) ALL FWLR (PT. 290) 1503 at 1518 for the proposition that in the realm of master and servant relationship even though ten or more persons are given employment the same day under the same conditions of service the contract of employment is personal or domestic to each of the persons. That each employee has domestic rights exclusively personal to him even though they share common terms of employment.
He submitted that the Respondents in this case instituted this case as a group against the Appellants over none review of their pensions having retired from the service of the Akwa Ibom State Government at various times.
He submitted that the terms of the Respondents contract of employment are different from each other. Each signed a separate contract with the Appellants and each of them must establish their contract of employment with the Appellants. In the event of breach of such contract they do not have a collective right to sue or be represented in the suit.
On this, Respondents
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counsel referred to the cases of ADEDIRAN VS. INTERLAND TRANSPORT LTD. (1991) 9 NWLR (PT. 219) PG 183, CCB (NIG) PLC VS. ROSE (1998) 4 NWLR (PT.544) PG 37.
Learned Counsel for the Appellants further submitted that all the Thirty-Eight (38) Respondents in this suit have different interests, their individual employment is personal and domestic to them, there is no corporate interest sought to be protected. Each of them deserves to be allowed to pursue his cause of action against the Appellants independently.
He submitted that the fact that it will lead to too many trials in our Court will still not compromise the position of the Law that in a master and servant relationship, in this instance a claim involving purported none review of their pensions having retired from the service of the Akwa Ibom State Government at various times from the Appellants; each of the Respondents has a cause of action against the Appellants and must bring a separate action to establish same.
He submitted that to further justify her position regarding the jurisdiction of the Court, the trial Court held at page 194 of the Record thus:
“The subject matter of
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this suit is payment of pension funds of the Claimants. The cause of action arose from pension payment arising from the workplace hence by ….. of Section 254C of the 1999 Constitution as amended, it is a matter within the jurisdiction of this Honourable Court.”
Appellant’s Counsel concedes that the subject matter of the case is within the exclusive jurisdiction of the Court below. But that there is a feature in the case which prevents the Court from exercising its jurisdiction. In other words, instituting the action collectively and not individually is a feature which has deprived the Court of jurisdiction. He referred to the case of MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587.
He submitted that the reliance of the trial Court on the provision of Order 13 Rules (1) and 14(1) of the National Industrial Court (Civil Procedure) Rules 2017 to justify his conclusion is not correct. Appellant’s Counsel reasoned that for parties to be joined in this type of action, the persons must have the same interest and reliefs and the cause of action must be same.
He referred to the cases of UKALTA VS. NDIAEZE (1997) 4 NWLR (PT. 499) 251,
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AMACHREE VS. NEWINGTON 14 WACA 97 and reminded us that the law of misjoinder of parties or that of causes of action in tort applies also to misjoinder of parties or causes of action in contract of employment.
He concluded that the interest of the parties in the instant appeal are separate and distinct and that their right to relief, is not in respect of or did not arise out of the same transaction or series of transactions and cannot be pursued collectively or jointly.
He urged us to resolve the lone issue in favour of the Appellants and to allow the appeal.
Learned Counsel for the Respondents on the other hand submitted on the lone issue that the parties as constituted do not in any way or aspect deprive the Court of jurisdiction. Learned counsel for the Respondents defined and explained the expressions “proper party” and “representative action” through the cases of MOBIL VS. L.S.E.P.A. (2002) 12 SCNJ 1 at 25 and ALFRED NWANGUMA 2 ORS VS. IKYAANDE & ORS (1992) & NWLR (PT. 258) 192.
He submitted that in the instance case each of the Claimants has an interest which will be directly affected if the Reliefs at
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paragraph 16 (i) – (ix) of the amended statement of facts are granted. He further submitted that there is no indication on the face of the originating processes that the 38 Claimants are representing any named or unnamed persons. Rather, each of the Claimants is listed as a party thus making the suit a personal one.
Learned Counsel for the Respondents submitted that the Claimants have the same interest and reliefs. That from the statement of facts and reliefs, all the Claimants are claiming their constitutional rights for pension review as enshrined in Section 210 of the Constitution of the Federal Republic of Nigeria. Thus, the Claimants have the same interest and reliefs.
Respondents Counsel submitted further that the Respondents cause of action is the refusal or neglect of the Appellants to review their pension every five years or simultaneously as salaries are reviewed as provided for in Section 210 of the 1999 Constitution of the Federal Republic of Nigeria. By this analogy, according to Respondents counsel, the Respondents Claimants action is a proper action for joinder of parties.
Learned Counsel for the Respondents distinguished
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the case ofAMACHREE & ORS. VS. NEKLINGTON (Supra) cited and relied upon by the Appellants on the ground that the action of the Respondents herein is not in torts.
He submitted that the cause of action of the Respondents on the review of their pensions under Section 210 of the 1999 Constitution is the same. He referred to the provision of Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the case ofNewspapers Corporation vs. Orie (1995) 1 SCNJ 218 at 220 -221 and submitted that the suit on record has satisfied all conditions on joinder of pensions or parties in one action. He added that the Respondents have satisfied the conditions for them to jointly take out the suit to enforce their personal/individual rights against the Appellants/Defendants.
Learned Counsel for the Respondents expatiated on the ingredients that are necessary for the satisfaction of the provision of Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rule 2017. He submitted that in the instant case, the cause of action of the Respondents Claimants arises from the same failure of the Appellants/Defendants to
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implement their rights as provided in Section 210 of the 1999 Constitution of Nigeria (as amended).
Second that the common question of Law is whether the Respondents Claimants are not entitled to have their pensions reviewed as provided in the Constitution. The common fact is whether the Appellants have reviewed their pensions as required by Section 210 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Thirdly, according to Respondents Counsel from the pleading the Respondents Claimants exhibited documents to show they are entitled to review of their pensions as provided in Section 210 of the 1999 Constitution as amended.
He referred to the case of Bendir vs. Anson (1963) 23 ALL ER 326 to show that the Respondent right to relief arose from the same transaction. Respondent Counsel submitted that the Respondents Claimants have satisfied all the conditions for joinder of parties to enforce their personal rights as provided for in under Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
Learned Counsel for the Respondents finally submitted that assuming but without conceding that
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the Respondents Claimants in this suit were misjoined, the Industrial Court by Order 13 Rule 14 (1) has jurisdiction to hear the suit so far as regards the rights and interest of the parties actually before the Court.
He reproduced the said Order 13 Rule 14 (1) of the National Industrial Court (Civil Procedure) Rules 2017 as follows:
“No proceedings shall be defeated by reason of misjoinder of non-joinder of parties and a judge may deal with the matter in controversy so far as regards the rights and interests of the parties actually before the Courts.”
He concluded that none of the cases cited by counsel to the Appellants is applicable to this suit as none of them took into consideration the provision of Order 13 Rule (1) and 14 (1) of the National Industrial Court Rules and or Supreme Court decisions on joinder of persons or parties.
He urged us to dismiss the appeal.
In deciding the sole issue in this appeal one must start with the fact that the learned counsel for the Appellants conceded the holding of the trial Court that the Court below has a subject matter jurisdiction under Section 254 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
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The complaint of the Appellants in the Court below and in this Court is that the Respondents Claimants as constituted are not proper parties before the Court below. Learned Counsel for the Appellants hinged his arguments on lack of proper parties on the common law position of the individuality of the tort feasor and or that of an employee in suits relating to master and servant relationships.
In so doing, Learned Counsel for the Appellants referred us to cases such as BOSSA VS. JULIUS BERGER (2005) ALL FWLR (PT. 290) 1503 at 1518, Adediran vs. Interland Transport Ltd. (1991) 9 NWLR (Pt. 219) 1083, CCB (NIG) PLC vs. ROSE (1998) 4 NWLR (Pt. 544) 37, AMACHREE & ORS. VS. NEWINGTON 14 WACA 97.
The main difficulty before the Courts in the cases relied upon by the Appellants was that the Plaintiffs therein being cases in tort and contract of employment were not able to fulfill the joint requirements of joinder of Plaintiffs and joinder of causes of action.
In the instant case, the Respondents claimants were able to fulfill the joint requirements of joinder of Plaintiffs and joinder of causes of action.
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This is because their common interest constituting the cause of action is a claim of a constitutional right for review of pensions under Section 210 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
In other words the Respondents joined as persons and parties to claim their constitutional right under Section 210 (3) of the 1999 Constitution to wit:
“Pensions shall be reviewed every five years or together with any state civil service reviews whichever is earlier.”
The main declaration in the Respondents pleadings read thus:
i. A declaration that the Defendants are bound to comply with the constitutional provision and review the pensions of the claimants every five years or simultaneously with any review of emoluments in the state whichever is earlier.
ii. A declaration that the claimants are entitled to a review of their pensions every five years or simultaneously with the review of emoluments of the class of public officers to which the claimants being – secretaries to the State Government/Secretaries.
It would be recalled that the names of the 38 Respondents Claimants in this suit were
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listed individually and separately. Their claims (iii) – (vii) deal with Orders directing the defendants/Appellants to review and pay the pensions of the Claimants Respondents who retired prior 29th May, 1999 in those capacities. For these reasons, I do agree with the learned counsel for the Respondents that the instant suit is on joinder of persons or parties in one action. I also agree with the learned trial Judge that the Respondents Claimants suit is properly constituted under the Provision of Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rule 2017.
Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 reads thus:
“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.”
The Supreme Court interpreting a similar provision in the Oyo State High Court (Civil Procedure) Rules 1978 held in the case of Newspaper Corporation vs. Orie (1995) 1 SCNJ 218 at 220-221 that:
“The joinder of persons or
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parties in one action as Plaintiffs as well as the joinder of causes of action is clearly permissible.”
Provided:
i. The right to relief claimed in the suit must be vested in the Plaintiffs whether jointly or severally.
ii. The right to relief is in respect of or arises out of the same transaction or series of transaction.
iii. That if separate actions were brought by such persons, a common question of law would arise.
In the instant case, the Respondents Claimants claims have satisfied the conditions required under Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
a) The right to relief claimed under the provision of Section 210 of the 1999 Constitution is vested on the Respondent Claimants jointly and severally.
b) The right to relief of the Respondents Claimants arose from the same transaction that is the failure of the Appellants to review the Respondent’s pensions as mandatorily stipulated in Section 210 of 1999 Constitution (as amended).
c) If the Respondent Claimants have brought separate actions the same common question of law as to the review of their pensions
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would arise.
For these reasons I agree with the learned trial judge that the parties as constituted in the suit are proper and that the Court has jurisdiction to try the case.
The issue in this appeal is resolved in favour of the Respondents. The Appellants appeal is and it is unmeritorious and it is accordingly dismissed.
N50,000 costs is awarded jointly and severally to the respondents.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother M. A. OWOADE, JCA.
I also abide by the trial orders of Court made in the lead judgment particularly dismissing the appeal. Appeal is dismissed.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had a preview of the judgment just by my learned brother Mojeed A. Owoade, JCA, agree with the reasoning and conclusions in dismissing the unmeritorious appeal. I abide by the consequential orders, inclusive of the order as to costs.
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Appearances:
Uwemedimo Nwoko Esq, with him, Sharon Eddie Esq and Nwokocha Esq. For Appellant(s)
Usungurua Bassey Esq., with him, Edwina Ogbioja Esq. For Respondent(s)
