CHEVRON (NIG.) LTD v. JOCECO (NIG.) LTD & ORS
(2022)LCN/16261(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, June 03, 2022
CA/AS/465/2018
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
CHEVRON NIGERIA LIMITED APPELANT(S)
And
1. JOCECO NIGERIA LIMITED 2. PAT ONOSEN NIGERIA ENTERPRISES LIMITED 3. SANCO/CALAYA JV. (NIGERIA) LIMITED 4. HENSTEEL ENGINEERING & CONSTUCTION SERVICE LIMITED 5. MR. PATRICK GBETAH 6. MR. EDWARD USINO 7. MR. BENEDICT ATIYOTA 8. MR. ANTHONY AKPOMUKU 9. MR. FRANK PANAMA 10. MR. MESIO TADYE SOLOMON AKPOMUKU 11. MR. OKORO THANKGOD 12. MR. ERUTE EFE EMMANUEL 13. MR. ASHESHE PIUS (For Themselves And On Behalf Of Disengaged Employees Of Joceco Nig. Ltd. Pat Onosen Nig. Ent. Ltd. Sanco/Calaya JVA. Nig. Ltd. And Hensteel Eng. & Const. Service Ltd.) RESPONDENT(S)
RATIO:
A COURT IS NOT A COURT OF MERCY BUT A COURT OF LAW AND EQUITY
It is robustly settled that the ingenuity of counsel or address shall not be a substitute for the settled position of the law nor constitute evidence as a counsel advocates the law and not on a testimony spree as a witness to substitute facts nor spring sentiments.
“A Court is not a Court of mercy in the Shakespearean sense of it. It is a Court of law and equity. It is a Court of Justice and justice demands that it should be done to the two sides of the case”
See Umarco V. Panalpina (1986) 2 NWLR (pt 20) 65 at 77 par. (a) per Eso JSC referred and relied on in Fapohunda v. R.C.C.N LTD (2019) 3 NWLR at 2011, per Eko, JSC. MOHAMMED AMBI-USI DANJUMA, J.C.A.
THE DUTY OF THE PARTIES TO PUT THEIR FACTS BEFORE THR COURTS
Indeed, it is the duty of the parties to put their facts before the Courts in order for a judicial decision to be pronounced both on the facts and the law involved. See Fapohunda v. RC.C. Int. Lt (supra) (per Galinje, JSC). Not having put up the facts of any nexus of the Appellant and his obligations (as none has been shown) under the contracts of employment, it was not for the lower Court to speculate and prop up a status and obligation for it/him; nor could counsel do that. The Respondents’ Issues can be resolved conclusively in the consideration of the Appellant’s Issues, and whose appeal it is, as the aggrieved. I shall therefore proceed to consider the appeal on the basis of the Appellant’s Issues.
a. Whether the National Industrial Court has jurisdiction to entertain this suit which from the pleadings and documents attached clearly shows no cause of action against the Appellant as there is no servant and master relationship between the Appellant and the 5th to 13th Respondents as Claimants at the trial Court (Grounds 1, 2, 3, 4 and 5 of the Grounds of Appeal. It is robustly settled that the ingenuity of counsel or address shall not be a substitute for the settled position of the law nor constitute evidence as a counsel advocates the law and not on a testimony spree as a witness to substitute facts nor spring sentiments.
“A Court is not a Court of mercy in the Shakespearean sense of it. It is a Court of law and equity. It is a Court of Justice and justice demands that it should be done to the two sides of the case”
See Umarco V. Panalpina (1986) 2 NWLR (pt 20) 65 at 77 par. (a) per Eso JSC referred and relied on in Fapohunda v. R.C.C.N LTD (2019) 3 NWLR at 2011, per Eko, JSC. MOHAMMED AMBI-USI DANJUMA, J.C.A.
A CAUSE OF ACTION IS DISCERNABLE NOT ONLY FROM THE PLEADINGS
Throughout the gamut of the pleadings and the reliefs claimed there is nothing about any employment relationship between the Appellant and 5th–13th Respondents and hence no valid claim for a relief could have been raised against it in contract. There is no cause of action disclosed against the Appellant, whose counsel had rightly submitted that a cause of action is discernable not only from the pleadings, i.e statement of facts/claim but indeed also from the addition to its accentuation as may be found or reckoned in the supporting documents or annextures thereto the processes as filed in Court. See Edilcon (Nig) Ltd vs. UBA (Plc) (2017) 18 NWLR (pt 1596) 74; Famudoh v. Abora (1991) 9 NWLR (pt. 214) 210; Onaguruwe v. Adeniyi (1993) 5 NWLR (pt. 293) 317; Okeke v. A.G. Anambra State (1997) 9 NWLR (part 519) 123; M.M.A. Inc. V. N.M.A. (2013) 1333 S.C, 506. It is robustly settled that the ingenuity of counsel or address shall not be a substitute for the settled position of the law nor constitute evidence as a counsel advocates the law and not on a testimony spree as a witness to substitute facts nor spring sentiments.
“A Court is not a Court of mercy in the Shakespearean sense of it. It is a Court of law and equity. It is a Court of Justice and justice demands that it should be done to the two sides of the case”
See Umarco V. Panalpina (1986) 2 NWLR (pt 20) 65 at 77 par. (a) per Eso JSC referred and relied on in Fapohunda v. R.C.C.N LTD (2019) 3 NWLR at 2011, per Eko, JSC. MOHAMMED AMBI-USI DANJUMA, J.C.A.
CONTRACT AFFECTS THE PARTIES AND CAN NOT BE ENFORCED AGAINST A PERSON WHO IS NOT A PARTY
The general rule of law is that a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. So only parties to a contract can sue and be sued on the contract even if the contract is made for the benefit of the third party. See Ikpeazu v. ACB Ltd (1965) NMLR 374. Since there was privity of contract between the Appellant and the 5th-13th Respondents, no cause of action arose against the Appellant to warrant its being joined in the suit. In the absence of cause of action against the Appellant, there was no right to sue the Appellant, and the trial Court lacked the jurisdiction to adjudicate on the matter vis-a-vis the Appellant. I therefore join my learned brother in allowing the appeal and striking out the suit as against the Appellant. JOSEPH EYO EKANEM, J.C.A
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the National Industrial Court of Nigeria sitting in Awka and delivered on 17-2-13; which appeal was transferred to the Asaba Judicial Division of the Court of Appeal from the Awka Division where it had earlier been transferred from Enugu Division of the Court.
The Respondents as “Claimants” at the National Industrial Court of Nigeria, Awka Judicial Division (hereinafter referred to simply as the “lower Court”) instituted Suit No: NICN/AWK/39/2015 against five (5) companies i.e. the Appellant (as 5th defendant) and the 1st–4th Respondents (as 1st-4th defendants) vide a Complaint filed into the lower Court on 17/11/2015. In Paragraph 38 of the Statement of Facts, the 5th-13th Respondents (hereinafter referred to simply as the “Respondents”), claimed jointly and severally against the Appellant and 1st–4th Respondents as the defendants as follows:
WHEREFORE, THE CLAIMANTS claims against the defendants jointly and severally as follows:
a. “A DECLARATION that at various times between 2005 and 2014, the claimants were the employees and/or staffs of the 1st-4th defendants in accordance with their various letters of employment”.
b. A DECLARATION that the failure of the defendants to pay the claimants their End of Contract (EOCO Bonus, Redundancy Allowance, Contributory Pension Benefit as provided in their contracts/letters of employment and/or Collective Bargaining Agreement (CBA) of 2005, 2009 and 2011 respectively is a breach of their contract of employment as provided in their letters of employment and the said Collective Bargaining Agreements”.
c. A DECLARATION that the failure of the 2nd and 3rd defendants to remit the 7.5% of the claimants’ consolidated gross monthly salaries deducted at source by the 2nd and 3rd defendants from January, 2014-September, 2014 to the Claimants’ chosen Pension Funds Administrator’s Account i.e. Premium Pensions Limited is a breach of contract of employment and the year 2011 Collective Bargaining Agreement (CBA) between the claimants and the 2nd and 3rd defendants and the Pensions Act”.
d. A DECLARATION that the failure of the 2nd and 3rd defendants to remit their own quota/contribution i.e 7.5% equivalent of the claimants’ consolidated gross monthly salaries from January, 2014- September, 2014 to the Claimants’ chosen Pensions Funds Administrator’s Account is a breach of contract of employment and the year 2011 Collective Bargaining Agreement (CBA) entered between the claimants and the 2nd and 3rd defendants and the Pensions Act”.
e. AN ORDER directing the defendants to pay the claimants their entitlements including redundancy allowance, End of Contract (EOC) Bonus aforesaid from 2005 – till August, 2014 with immediate effect in line with their contracts of employment and the Collective Bargaining Agreements of 2005, 2009 and 2011 respectively aforesaid”.
f. “AN ORDER directing the 2nd and 3rd defendants to remit their own quota/contribution i.e. the 7.5% equivalent of the claimants, consolidated gross monthly salaries from January, 2014 – September, 2014 to the Claimants’ chosen Pensions Funds Administrator’s Account in accordance with the claimants’ contract of employment and the year 2011 Collective Bargaining Agreement (CBA) entered between the claimants and the 2nd and 3rd defendants and the provisions of the Pensions Act”.
g. “AN ORDER directing the 2nd–4th defendants to immediately issue letters of disengagement and all other documents that may be required by the claimants to access their Contributory Pensions Account maintained with their Pensions Funds Administrator i.e Premium Pensions Limited”
h. “The sum of N100,000,000 (One Hundred Million Naira) as general, aggravated and/or exemplary damages for the discomforts suffered by the claimants at the instance of the defendants and/or for breach of contract”.
i. “Interest at the rate of 21% per annum on any judgment sum awarded until finally liquidated by the defendants”.
j. ANY OTHER SUITABLE RELIEF.
See pages 19 – 21 of the Records of Appeal
The Appellant upon entering appearance as the 5th defendant at the lower Court filed a preliminary objection dated 9/12/2015 and filed on 10/12/2015, praying the lower Court to strike out its name from this suit as a party on the ground that there was no privity of contract between the 5th-13th Appellants and the Appellant.
The parties thereafter exchanged written addresses in accordance with the Rules of the lower Court. The parties consequently adopted their respective written addresses on 28/6/2016 and matter was adjourned for ruling on the preliminary objection of the Appellant.
In a ruling delivered on 17/2/2017, the learned trial Judge, Honourable Justice W. Abali, the learned trial Judge held as follows:
“I have studied all the processes filed in this suit and considered the submissions of counsel; a cause of action is an aggregate of facts which gave a party the right to sue. Such right to sue, thus, consist of wrongful acts of the defendant(s) which give the claimant(s) the right to complain and ask for consequential damages flowing from such wrongful act. See NWAOGWUGWU V. FRN (2007) NWLR (PT. 1030) 237; CHUKWU V. AMADI (2009) 3 NWLR (PT. 1123) 56.
To determine a cause of action, the Court restricts itself to the statement of claim (facts)
A look at the claimants’ statement of facts particularly paragraphs 3, 4, 5, 7, 9, 10, 13, 15, 16, 17, 27, 28 and 37 shows that sufficient and reasonable cause of action has been disclosed by the claimants against the 5th defendant. However, the success or otherwise of these cause of action would be determined at the close of trial and after taking evidence.
The 5th defendant also contended that it is not privy to the contract and agreements that led to this suit. The truth is that that issue cannot be determined at this preliminary stage. Such issue is, indeed, a question of fact, which can only be determined by evidence.
The 5th defendant also claim not to have been served with any demand notice by the claimants before the suit was instituted. Here, it is interesting how a party who claimed that no cause of action is disclosed against it and that it was not privy to the agreements that gave rise to this suit could turn around to contend that no demand notice has been given to it before the action was commenced. In any case, the non-issuance/non-service of demand notice cannot and has never vitiated a cause of action.
On the whole, this application of the 5th defendant lacks merit and is not sustainable. It is therefore dismissed in its entirety, with no order as to cost.
Ruling is accordingly entered”
The appellant dissatisfied with the ruling of the lower Court lodged a Notice of Appeal containing Five (5) Grounds of Appeal and same was filed on 23/5/2018. However, the appellant subsequently vide a motion filed into Court on 25/6/2018, sought “leave to raise a fresh issue not canvassed at the lower Court with respect to the competence/locus standi of the 5th-13th respondents to have instituted the action in a representative capacity”.
The application for leave was granted by this Honourable Court on 22/10/2020 for the appellant to canvass grounds 6 and 7 which are fresh issues and/or grounds not canvassed at the lower Court and the appellant’s Brief of Argument also deemed as properly filed.
The ruling is contained in the Record of Appeal transmitted on 25-6-18, whereat the original Notice of Appeal is embedded at pages 314 – 319 thereof.
It is important to state anon that in the ruling been challenged, in suit No. NICN/AWK/39/2015, the trial Court had disallowed the preliminary objection of the Appellant on the lack of jurisdiction of the Tribunal to hear the suit, for no disclosure of cause of action and lack of lucus standi to sue.
It is pertinent to point out that an Amended Notice of Appeal was also filed on 25th June 2018, and an Appellant’s Brief of Argument of 18-6-18 and an Appellant’s reply Brief of Argument filed on 7-2-22 but deemed filed and served on 22-3-22.
The 5th–13th Respondents had also filed and served their Joint Brief of Argument, on 19-3-22 and which was deemed duly filed on 22-3-22 and served accordingly.
On their part, the 1st–4th Respondents filed no Brief of Argument. At the hearing, the Appellant had argued that the appeal should be allowed on all the grounds and to set aside the decision of the trial Court and to strike out the suit against the Appellant, who is not the employer of the 5th–13th Respondents, that reliefs may exist against others, but not against the Appellant and that representative action was not available in contracts of personal service.
The 1st Respondent represented by K.B. Atsenuwa, the 5th–13th Respondents represented by Chief V.E. Otomiewo, Esq, 2nd, 3rd and 4th Respondents absent; 1st, 2nd, 3rd and 4th Respondents, filing no Briefs are deemed not to be opposing the appeal and thus conceeded to all the Arguments proferred by the Appellant in his Brief of Argument.
For a proper understanding of this appeal, it is necessary to reproduce the entirety of the statement of facts as captured by Appellant in its Brief of Argument as filed on 25-6-18 and adopted at the hearing; for it is a succint appraisal of the facts as I can glean from the Record of Appeal.
It is reproduced verbatim thus:
The 5th–13th Respondents instituted this action in a representative capacity on behalf of disengaged employees of Joceco Nigeria Limited, Pat Onoseh Nigeria Enterprises Ltd, Sanco/Calava JVA Nigeria Limited and Hensteel Eng. & Canst. Services Ltd. who were sued as 1st to 4thDefendants.
The reliefs of the Plaintiffs in the suit now 5th–13th Respondents in the originating processes particularly the Statement of Facts runs thus:-
a. A DECLARATION that at various times between 2005 and 2014, the claimants were the employees and/or staffs of the 1st- 4th defendants in accordance with their various letters of employment.
b. A DECLARATION that the failure of the defendants to pay the claimants their End of Contract (EOCO Bonus, Redundancy Allowance, Contributory Pension Benefit as provided in their contracts/letters of employment and/or Collective Bargaining Agreement (CBA) of 2005, 2009 and 2011 respectively is a breach of their contract of employment as provided in their letters of employment and the said Collective Bargaining Agreements.
c. A DECLARATION that the failure of the 2nd and 3rd defendants to remit the 7.5% of the claimants’ consolidated gross monthly salaries deducted at source by the 2nd and 3rddefendants from January, 2014 – September, 2014 to the Claimants’ chosen Pension Funds Administrator’s Account i.e. Premium Pensions Limited is a breach of contract of employment and the year 2011 Collective Bargaining Agreement (CBA) between the claimants and the 2nd and 3rd defendants and the Pensions Act”.
d. A DECLARATION that the failure of the 2nd and 3rd defendants to remit their own quota/contribution i.e 7.5% equivalent of the claimants’ consolidated gross monthly salaries from January, 2014- September, 2014 to the Claimants’ chosen Pensions Funds Administrator’s Account is a breach of contract of employment and the year 2011 Collective Bargaining Agreement (CBA) entered between the claimants and the 2nd and 3rd defendants and the Pensions Act”.
e. AN ORDER directing the defendants to pay the claimants their entitlements including redundancy allowance, End of Contract (EOC) Bonus aforesaid from 2005 – till August, 2014 with immediate effect in line with their contracts of employment and the Collective Bargaining Agreements of 2005, 2009 and 2011 respectively aforesaid.
f. “AN ORDER directing the 2nd and 3rd defendants to remit their own quota/contribution i.e. the 7.5% equivalent of the claimants, consolidated gross monthly salaries from January, 2014 – September, 2014 to the Claimants’ chosen Pensions Funds Administrator’s Account in accordance with the claimants’ contract of employment and the year 2011 Collective Bargaining Agreement (CBA) entered between the claimants and the 2nd and 3rd defendants and the provisions of the Pensions Act”.
g. “AN ORDER directing the 2nd–4th defendants to immediately issue letters of disengagement and all other documents that may be required by the claimants to access their Contributory Pensions Account maintained with their Pensions Funds Administrator i.e Premium Pensions Limited”
h. The sum of N100,000,000 (One Hundred Million Naira) as general, aggravated and/or exemplary damages for the discomforts suffered by the claimants at the instance of the defendants and/or for breach of contract.
i. Interest at the rate of 21% per annum on any Judgment sum awarded until finally liquidated by the defendants.
j. ANY OTHER SUITABLE RELIEF.
The disengaged staff, of the four companies they worked and their salaries were listed paragraph 35 of the statement of fact at pages 14-19, of the Record of Appeal. In the bundle of documents attached to be relied on by the claimants at the trial includes:
1. Letters of Employment for some of disengaged workers issued by 1st-4th Respondents. Appellant did not issue any letter of employment to the disengaged staff.
2. Collective Agreements between the Claimants’ Union and 1st–4th Respondents. Appellant was not a party to the agreement.
3. Letters of demand to 1st, 3rd and 4th Respondents to demand payment for the Claimants’ refusal of which led to the filing of this suit. No letter of demand was written to Appellant demanding payment for obvious reason that it was not the responsibility of Appellant to pay any benefits to Plaintiffs.
Firstly, from the reliefs no relief was specifically claimed against the Appellant. Relief 38[a], [c],[d],[f], [g] were specific on 1st-4th Respondents and in particular 2nd and 3rd Respondents. Relief 38 [b] and [c] were in general terms so also [h][i]and [j].
Secondly, from the pleadings, the Plaintiffs knew who employed them to be 1st–4th Respondents herein not Appellant. This is not in dispute as shown by Plaintiffs themselves in the letter of employment and the Collective Agreement which form the basis of their cause of action. The Appellant is not a signatory to any of the two documents upon which Claimants based their claim. This is further corroborated by Claimants’ Solicitors letters of demand Appellant was never written.
Following the above undisputed facts, the Appellant filed a motion dated 9/12/2015 but filed 10/12/2015 praying the Court to wit:
An order dismissing/striking out this case for lack of jurisdiction to hear the same upon the grounds stated hereunder:
AND for such further order or orders as this Honourable Court may deem fit to make in the circumstances.
GROUNDS FOR THE APPLICATION
i. There is no cause of action or reasonable cause of action against the 5th Defendant.
ii. The 5th Defendant is not privy to all the agreements and/or transactions that gave rise to the filing of this suit and no demand notice was served on the 5th Defendant.
iii. The Honourable Court lacks jurisdiction to try the suit.
After the exchange of written address argument was taken on 28/06/2016. See pages 308-311 of the Record.
On 17/5/2017 the Court delivered its ruling in which the Court dismissed the application in its entirety.
RULING
By a Notice of Preliminary Objection (NPO) dated 09/12/2015 and filed on 10/12/2015, the 5th defendant/applicant urged this Court to dismiss the claimants’ suit on the grounds that:
1. There is no cause or action against the 5th defendant;
2. The 5th defendant is not privy to all the agreements and/or transactions that gave rise to this suit and that no demand notice was served on the 5th defendant; and
3. This Court lacks the jurisdiction to try this suit.
The application is supported by a 5-paragraph affidavit and a written address.
Claimants duly responded by filing their written address in opposition to the application.
I have studied all the processes filed in this suit and considered the submissions of counsel; a cause of action is an aggregate of facts which gave a party the right to sue. Such right to sue, thus, consists or wrongful act of the defendant(s) which give the claimant(s) the right to complain and ask for consequential damages flowing from such wrongful act. See, Nwaogwugwu v. FRN (2007) NWLR (Pt. 1030) 237; Chukwu v. Amadi (2009) 3 NWLR (Pt. 1123) 56.
To determine a cause of action, the Court restricts itself to the statement of claim (facts).
A look at the claimants’ statement of facts particularly paragraphs 3, 4, 5, 7, 9, 10, 13, 15, 16, 17, 27, 28 and 37 shows that sufficient and reasonable cause of action has been disclosed by the claimants against the 5th defendant. However, the success or otherwise of these cause of action would be determined at the close of trial and after taking evidence.
The 5th defendant also contended that it is not privy to the contract and agreements that led to this suit. The truth is that that issue cannot be determined at this preliminary stage. Such issue is, indeed, a question of fact, which can only be determined by evidence.
The 5th defendant also claimed not to have been served with any demand notice by the claimants before the suit was instituted. Here, it is interesting how a party who claimed that no cause of action is disclosed against it and that it was not privy to the agreements that gave rise to the suit could turn around to contend that no demand notice has been given to it before the action was commenced. In any case, the non-issuance/non-service of demand notice cannot and has never vitiated a cause of action.
On the whole, this application of the 5th defendant lacks merit and is not sustainable. It is therefore dismissed in its entirety, with no order as to cost.
Ruling is entered accordingly.
It is also necessary to point out that the appeal was brought pursuant to the grant of the Appellant’s applications of 24-3-2017 and on 17-5-18 for leave to appeal out of time, leave to appeal and extension of time to appeal.
Appellant’s counsel said, his clients were by their amended Notice of Appeal raising for the first time two Additional Grounds of Appeal on the locus standi of the 5th to 13th Respondents to institute this action, which border on the jurisdiction of the Court; and that this can be raised for the first time on appeal and without seeking leave.
SAKATI VS BAKO (2015) 14 NWLR (PT 1480) 531 AT 563 PARAGRAPHS E–G RATIO 6 was cited in support.
The said case decides as follows:
“The rules of Court requires a party raising an issue in an appeal for the first time to do so by leave of Court.
However, the issue of jurisdiction is radical and at the foundation of adjudication and if a Court acts without jurisdiction the entire process is a nullity. Thus the Court cannot decline to deal with an issue of jurisdiction raised even for the first time on appeal even if without leave. The issue of jurisdiction cannot be defeated by any provisions of the Rules of Court”
For the aforesaid, the Appellants have raised two issues for the determination of this Court and including the issue of jurisdiction to cover the Additional Grounds of Appeal.
ISSUES FOR DETERMINATION
The Appellant set out 2 issues for determination, thus;
1. Whether the National Industrial Court has jurisdiction to entertain this suit which from the pleadings and documents attached clearly shows no cause of action against the Appellant as there is no master and servants relationship between Appellant and 5th to 13th Respondents as claimants at the trial Court (Grounds 1, 2, 3, 4 and 5 of the Grounds of Appeal).
2. Whether the 5th to 13th Respondents as claimants at the trial Court have the locus standi to institute the suit on behalf of several individuals with personal and distinct contract of employment and claim in a representative capacity benefits accruing to the individual workers in the suit (Grounds 6 & 7 additional grounds of appeal).
It is particularly important to point out that the locus standi and competence of the 5th–13th Respondents to institute the suit in the lower Court, in a representative capacity was raised upon the leave granted via the motion of 22/10/2020 to canvass grounds 6 and 7 as fresh issues and grounds not canvassed at the Court below.
On issue one, the Appellant argued that the trial Court, from the pleaded facts and documents attached, the trial Court, had no jurisdiction to hear and determine the suit against the Appellant, in that the undisputed facts pleaded by the 5th–13th Respondents clearly stated that they were not employees of the Appellant.
Drawing from these averments, the learned Counsel reasoned that there are TWO prongs to the issue ONE: and that is,
(a) What the jurisdiction of the National INDUSTRIAL Court was as relating to reliefs claimed relating to employment benefits based on their letters of employment and the respective collective Agreements with 1st–4th Respondents.
(b) If from the facts of the claimants’ case as pleaded a cause of action has been shown to exist against the Appellant from claimants, the 5th–13th Respondents herein.
Counsel submitted that from whatever angle it is viewed, a jurisdictional issue had been thrown up against the Court’s jurisdiction to hear and determine the suit against the Appellant.
Referring to Section 254 (c)(i) of the Amended Constitution, 1999 thus;
“Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and addition to such other jurisdiction as may be conferred upon it …”
Reference made to the definition of employee and employer in Section 54 (1) National Industrial Court Act, 2006 and the pleadings and submits that the Appellant is not the employer of the Claimants. That without a master and servant relationship, the Court does not have jurisdiction to hear Employer and Employee disputes when it relates to payment of benefits or redundancy benefits. That the specific claim against the 1st – 4th Respondents in relief 39 (c) (m) (d) (f) and (g) speaks for itself. That the demand made on 1st–4th Respondent for the payments claimed, further confirms that limited relationship and with them alone.
That assigning them to work for Chevron as contract staff cannot give rise to a cause of action under master and servant against the Appellant who was not an employer of the claimants.
That the Appellant was not a party to their contracts and cannot have the claimants foisted on it. There was no cause of action, let alone a reasonable cause of action disclosed.
The learned Counsel argued that the facts having been pleaded already new facts cannot be brought differently and therefore the facts disclosing no cause of action are the same that shows there is no privity of contract between the parties.
The learned counsel submitted that in raising the preliminary objection, the presumption is that the Appellant/Defendant has accepted the facts pleaded by the Plaintiffs/Claimants/Respondents, that there was no cause of action nor privity of contract from the facts and documents pleaded. Analysing the several claims made in the Statement of Claim, the Appellants submitted that there was no privity of contract shown at all, other than an effort at “roping”, the Appellant in, as there was no Employer/Employee relationship. That Issue One be resolved in favour of the Appellant.
ISSUE 2:
On this issue, it was submitted that the Claimants have no locus standi to institute this action on behalf of the persons they purport to represent. That for a representative action to be filed, there must co-exist the following three conditions to be satisfied.
1. Common Interest
2. Common grievances
3. The relief must be beneficial to all.
CHEVRON NIG. LTD V. YOUNG & ORS CA/C/155/2015 delivered on 10/05/2017 was relied upon. Adediran & Anor V. Interland Transport Ltd. (1991) 9 NWLR (pt. 214) 155 Idise vs. William International Ltd (1995) 1 NWLR (pt. 370) (72) Jumbo Vs. The Shell Petroleum Development Company of Nigeria Limited (1999) 13 NWLR (pt. 633) Amachree & Ors vs. Newington (1952) WACA 97.
The learned Counsel argued that from the facts of the case, the Claimants and all they purport to represent have distinct and separate letters of employment from different companies and legal entities sued as 1st–4th Defendants. That each employee represented is bound by distinct and separate letters of employment at different times to different contractors to the Appellant. It was pointed out that at paragraph 35 of the Statement of Claim Claimants listed 235 persons showing their employers being 1st–4th Defendants, period of employment and salaries which vary from one company to the other and from one individual to the other. That there was no averment that they were jointly employed by the four companies or that they were employed in common or that their salaries were paid jointly and they enjoyed them jointly.
That there was only a joint grievance. That there was no locus standi for the 1st–4th Respondents to bring any action in a representative capacity.
That their employment from the nature of each worker whom they purport to represent has his individual interest alone to maintain; not common to others that were disengaged by the four companies – 1st–4th Respondents. That their salaries annures to each and not to a group of persons. That it is the individual alone that can bring his action for his salaries and entitlement against his employer and alone and not in a representative action.
That the action is made worse when no link has been shown between the 4 distinct companies. That the claimants have no locus standi to bring this action in a representative capacity and it should therefore be dismissed or struck out for lack of jurisdiction.
The 1st, 2nd, 3rd and 4th Respondents filed no Brief, in response, and in opposition. The 5th–13th Respondents’ Brief of Argument filed on 19/1/22 and deemed filed on 22/3/22 was adopted at the hearing.
The learned counsel, after an apt and succinct summary of the claims and the preliminary objection raised at the trial Court and a reproduction of the ruling appealed against formulated two Issues to wit:
1. Whether this appeal is competent having regard to the provision of Section 243 (2) of the 1999 Amended Constitution and decision of the Supreme Court in Skye Bank Vs. Iwu (2017) 16 NWLR (pt. 1590) page 24.
2. Whether from the pleadings and/or reliefs claimed and documents filed by the 5th–13th Respondents in support of their claim in the lower Court, a reasonable cause of action is not disclosed against the Appellant.
3. Whether the claim before the lower Court can be said to have been instituted without capacity and/or locus standi by the 5th–13th Respondents having regards to the Rules of the National Industrial Court of Nigeria on parties to an action.
Arguing Issue one, the learned counsel argued that the question of breach of fundamental Rights raised by the Appellant in Argument had no basis as it made his appeal incompetent. That questions relating to fundamental Rights violations can only be asserted in the National Industrial Court in the circumstances stated in Section 254 and 243 (2) (3) of the Constitution and thecase of Skye Bank Plc v. Iwu (supra). The counsel made reference to many other decisions adumbrating the right of appeal and the circumstances allowed and then urged that the extant appeal is incompetent on the ground that same does not involve any question of violation of fundamental human right under Chapter 4 of the Constitution of the Federal Republic of Nigeria (as amended) and no leave was sought.
That the Issue be resolved in favour of the Plaintiffs/Respondents.
ISSUE TWO
On whether a reasonable cause of action has been disclosed against the 5th Defendant, now Appellant, the learned counsel submitted that the relevant facts to look out for, in that determination is the pleadings as in the statement of facts of the claimant filed on 19/11/15.
Minister of Works and Housing Vs. Shittu (2009) ALL FWLR (Pt. 401) 847 at 864 D–F relied upon; Counsel refers to the judicial interpretation of “cause of action” as the set of facts or circumstances that gives the Plaintiff the right to a relief in Court – Society Bics Ca Vs. Charzin Industries Ltd (2014) 2 SC (Pt. 11) 57 AT 85 paras 20–30 where the cause of action is defined thus:
“The term “Cause of action” is judicially defined as denoting every fact (though not every piece of evidence) which it would be necessary for the Plaintiff to prove, if traversed. To support his right to the judgment of the Court.”
“It is any act on the part of the defendant which gives the Plaintiff a cause to complain …. It is different from the evidence on pieces of evidence necessary to support the claim. It is the entire set of circumstances given rise to enforceable claim”
Learned counsel exquisitely relies on Olawore V. Ojo (2006) ALL FWLC (pt. 341) page 1382 at 1392 par. 11–12 where the Court stated emphatically thus:
“For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the Plaintiffs and the obligations of the Defendant. It must then go on to set out facts constituting an infraction of Plaintiffs legal right on failure of the Defendants to fulfil his obligations in such a way that if there is no proper defence the Plaintiff will succeed in the relief or remedy he seeks”
Referring to the pleadings in paragraphs 2, 3, 5, 7, 9, 10, 13, 15, 16, 17, 27, 28 and 37 of the statement of facts as pleaded, it was contended that the Respondents have demonstrated that they have a cause of action against the Appellant.
That the 1st–4th Respondents recruited the Respondents to work on the job site of the Appellant and the 1st–4th Respondents draw the 5th–13th Respondents’ salaries directly from the 5th Defendant/Appellant and that the 1st–4th Respondents together with the Appellant are in possession of the 5th–13th Respondents’ benefits, and entitlements including their redundancy Allowance, End of Contract Bonus. Counsel shot his case at the foot in submitting at page 15 of his clients’ Brief of Argument page 14–15 thus:
“This allegations pleaded in the paragraphs highlighted above touches and concerns the Appellant or record either directly and/or by implication (Underlining mine)”
The learned counsel proceeded to contend that the Respondents need not to establish a water tight cause of action or that their action is most likely going to succeed to entitle them to seek judicial redress.
On the privity of contract, it was argued that from the pleadings had assigned his contractual obligations to the 1st–4th Respondents.
That the legal implication was that the Appellant could not hide under the privity of contract principle to content that it cannot be sued. That the contention be disregarded.
ISSUE 3
Whether the claim before the lower Court can be said to be instituted without capacity and locus standi by the 5th – 13th Respondents having regards to the provisions of the Rules of the National Industrial Court of Nigeria, on parties to an action.
Reproducing the Order 13 Rules 1, 4, 6 and 11 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 the counsel contends that the 1st–4th Respondents could take out a suit against multiple defendants as it thinks it has a complaint against and judgment could be entered. Specifically, counsel relies on all the statements of fact (paragraphs 1–27 and concludes as follows:
I urged that the issue be resolved in favour of the Respondents and the case be remitted to the trial Court for hearing on the merit.
In reply, the Appellant by its reply Brief filed on 7/2/22 and adopted at the hearing submitted that what seemed like, an objection to the competence of the appeal was a misconception of the law and the decision in Sky Bank Plc v. Iwu (2017) 16 NWLR (pt. 1590) 24. That the Appellant can appeal against all decisions of the National Industrial Court of Nigeria as of right or with leave, and not in just a fundamental human rights Issues as posed by the Respondents. That appeals lie as of right in criminal and fundamental rights questions and with leave in others.
That leave was granted on 18th May, 2018 and the Notice of Appeal duly filed on 23rd May, 2018 within time prescribed. That Respondents who were aware of the proceedings did not participate. Counsel pointed out the trial proceedings continued between the filling of the application for leave to appeal and the filing of the Notice of Appeal until it was brought to the Notice of the trial Court that the trial was adjourned sine die. That the contention in Respondents’ Issue one is misconceived in the circumstances.
That leave was sought and granted and also in respect of the Additional grounds of Appeal, leave was also sought and granted on 22/10/2020, and that the appeal was, therefore competent.
On the submission that disputes had arisen, it is submitted that cause of action must be construed within the confines of the limited jurisdiction of the National Industrial Court. That the mere fact that 1st–4th Respondents employed 5th–13th Respondents to work at Appellant’s site does not qualify the dispute to be one which can be ventilated at the trial Court.
The learned counsel argued whether if there was a breach of contract between the Appellant and 1st–4th Respondents, whether it is at the National Industrial Court that a suit can be filed? As a corollary, that even if the contract purportedly breached was for 5th–13th Respondents’ benefit, if they could sue and at the National Industrial Court? That they could not sue a person who is not their employer just like 1st–4th cannot sue at the National Industrial Court either for any purported breach.
It was also submitted that even if the suit could lie at that forum (though not conceded) the said 5th–13th Respondents lack the locus standi to sue on behalf of their employers as they purport to do.
The learned counsel also faults the limited reliance of the 5th–13th Respondent on the averments alone; and submits that the Court is entitled to read the pleadings holistically and to include the reading of all the documents annexed to them. M. M. A. Inc. Vs. N.M.A (2013) 3 NWLR referred.
That Respondents were not employed to work in the Appellant’s site only as contended; as the letters of appointment did not bear that out. That the letters of appointment annexed to the amended statement of claim shows no link between the 5th–13th Respondents and the Appellant. The letters of employment found on pages 72–97 of the record of Appeal reproduced does not fix 5th–13th Respondents’ work location to Appellant’s work facilities/premises as submitted.
That 1st–4th Respondents could deploy their employees 5th-13th Respondents to any other company to work. That Appellant does not pay wages to 5th–13th Respondents rather it pays contract fees to 1st–4th Respondents who in turn pay the 5th –13th Respondents all their deserved and agreed wages. Appellant does not have the power to dismiss or terminate the employment of the 5th–13th Respondents. The Appellant also not responsible for the deduction of the taxes/pension; where then lies the basis to sue the Appellant for the reliefs which they now claim against the Appellant? The learned counsel queried.
That the mere mention of the Appellant in the pleading does not establish a cause of action and so also the word ‘Defendants’ does not mean a disclosure of a cause of action.
That there was no pleadings or evidence showing that the 1st–4th Respondents are agents of the Appellant or that contract obligations between 5th–13th Respondents were assigned by the 1st–4th Respondents to Appellant or vice versa.
That the contracts of Employment and Collective Bargaining Agreements say nothing of such and the argument of counsel cannot take the place of pleadings or evidence in that the exceptions recognised the case of Ekeru v. Anuku (2011) ALL FWLR (pt. 561) on privity of contract as inapplicable to the facts of this case. That the dispute in that case did not emanate from the National Industrial Court which have very limited jurisdiction.
On the Respondents’ Issue 3, it was argued in reply that the National Industrial Court Civil Procedure Rules providing the procedure for bringing an action has not taken away nor does it dictate the legal requirements to substantiate the suit in law. That the conditions precedent for bringing representative actions have not been abrogated by the Rules. That relying on the fact of the existence of the Rules simpliciter to validate the suit was an admission that the suit was incompetent, but for the Rules. That there being no answer to those material points amounted to an admission and that there was no answer to same.
Olley v. Tunji (2013) 10 NWLR (pt. 1362) p. 275 at 321 paras C-D
Thus:
“Appellant’s case is that since the affidavit evidence contains disputed facts, the matter is not suitable for originating summons procedure. Learned silk for the 1st Respondent did not respond to the issue of disputed facts/or hostility arising therefrom. He is deemed to have conceded the point made by the learned senior counsel for the Appellant”
This Court has been urged to allow the appeal and set aside the judgment of the trial Court and in its place grant all the reliefs sought by the Appellant in the preliminary objection by dismissing the suit of the 5th–13th Respondents against the Appellants, herein.
DECISION
This appeal is one within a very narrow compass. It has been aptly and ingenuously argued by both sides. The law is however so settled on the principles of law thrown up therein, the appeal and what facts are in law, i.e. the fountain head of the law.
It is robustly settled that the ingenuity of counsel or address shall not be a substitute for the settled position of the law nor constitute evidence as a counsel advocates the law and not on a testimony spree as a witness to substitute facts nor spring sentiments.
“A Court is not a Court of mercy in the Shakespearean sense of it. It is a Court of law and equity. It is a Court of Justice and justice demands that it should be done to the two sides of the case”
See Umarco V. Panalpina (1986) 2 NWLR (pt 20) 65 at 77 par. (a) per Eso JSC referred and relied on in Fapohunda v. R.C.C.N LTD (2019) 3 NWLR at 2011, per Eko, JSC.
Indeed, it is the duty of the parties to put their facts before the Courts in order for a judicial decision to be pronounced both on the facts and the law involved. See Fapohunda v. RC.C. Int. Lt (supra) (per Galinje, JSC). Not having put up the facts of any nexus of the Appellant and his obligations (as none has been shown) under the contracts of employment, it was not for the lower Court to speculate and prop up a status and obligation for it/him; nor could counsel do that. The Respondents’ Issues can be resolved conclusively in the consideration of the Appellant’s Issues, and whose appeal it is, as the aggrieved. I shall therefore proceed to consider the appeal on the basis of the Appellant’s Issues.
a. Whether the National Industrial Court has jurisdiction to entertain this suit which from the pleadings and documents attached clearly shows no cause of action against the Appellant as there is no servant and master relationship between the Appellant and the 5th to 13th Respondents as Claimants at the trial Court (Grounds 1, 2, 3, 4 and 5 of the Grounds of Appeal.
The resolution of this issue above as posed gravitates simply on the related questions of (i) what constitutes the jurisdiction of the National Industrial Court and when a cause of action can be said to have been disclosed in a matter to warrant the exercise of jurisdiction by a Court.
Firstly, the jurisdiction of the National Industrial Court of Nigeria is as set out in Section 254 C (i) of the Constitution of the Federal Republic of Nigeria, thus;
Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this constitution, and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to exclusion of any other Court in civil cases and matters:
(a) Relating to or connected with any labour employment, trade unions, industrial relations and matter arising from work place, the conditions of service, including health, safety, welfare of labour, employee worker and matters incidental thereto or connected therewith.
An employer/Employee has been defined under Section 54 (1) of the National Industrial Court Act respectively as: “Employee” means a person employed by another under oral or written contract of employment …..
“Employer” …
From the averments in the statement of claim, there appears to have been disclosed an incidence of employment to warrant the National Industrial Tribunal entertain a case on the claim of reliefs before her.
However, the relevant and pertinent question to ask is: Does a Court entertain actions/suits in subject area(s) of its jurisdiction at large? The answer is in the negative, a cause of action must first be necessarily disclosed before the Plaintiff may proceed on the subject of Litigation.
That will also lead to the existence imperatively of a privity of contract between the parties to attract the enforcement of any purported contract or remedy for any breach thereof.
The Claimants, as 1st–4th Respondents’ employees, by their pleadings could found an action before the National Industrial Court against them for any purported breach and remedies sought. They had competently so sought; however, as against the Appellant, an employer and employee relationship must be shown by the Respondents to exist before the existence of a cause of action can even be inquired into.
Throughout the gamut of the pleadings and the reliefs claimed there is nothing about any employment relationship between the Appellant and 5th–13th Respondents and hence no valid claim for a relief could have been raised against it in contract. There is no cause of action disclosed against the Appellant, whose counsel had rightly submitted that a cause of action is discernable not only from the pleadings, i.e statement of facts/claim but indeed also from the addition to its accentuation as may be found or reckoned in the supporting documents or annextures thereto the processes as filed in Court. See Edilcon (Nig) Ltd vs. UBA (Plc) (2017) 18 NWLR (pt 1596) 74; Famudoh v. Abora (1991) 9 NWLR (pt. 214) 210; Onaguruwe v. Adeniyi (1993) 5 NWLR (pt. 293) 317; Okeke v. A.G. Anambra State (1997) 9 NWLR (part 519) 123; M.M.A. Inc. V. N.M.A. (2013) 1333 S.C, 506.
A perusal of the letters of employment annexed to the 5th–13th Respondents’ pleading/statements of facts/Amended statement of claim does not link the Appellant to the 5th-13th Respondents and in relation to any employment. The 5th-13th Respondents’ places of work and engagement are not said to be linked to the Appellant’s site. Appellant does not pay the salaries and wages of the 5th-13th Respondents nor shown to have power to dismiss or terminate their employment by their 1st–4th Respondents employers.
The said Appellant does not have the power to deduct any pension/taxes of the 5th–13th Respondents in a Contract it is not party to.
I, therefore agree with the Appellant’s counsel when he asked “where then lies the basis to sue the Appellant for the reliefs claimed?” The mere fact that the Rules of Civil procedure governing the National Industrial Court permits the institution of suit for claims against more than one person does not mean that a suit may be instituted against persons who have had no cause of action disclosed against them, as in this case.
The Appellant has not been shown, per the pleadings, as an agent or principal of the 1st – 4th Respondents nor assigned to or being in privity of contract by any means with them.
For a cause of action to be shown to have been disclosed against a person such a person must have been shown to be one against whom a remedy or relief exists from the facts pleaded; and who, if not joined the matter cannot on its merit be determined or enforced unless he is made a party.
Indeed such a person or party, must be one against who the order of the Court will be directed.
See N.A.P vs. INEC (2012) 12 MJSC pt 111 67 10 C-F
No order of the National Industrial Court could, on the pleadings and annextures be made against the Appellant, who was, ipso facto wrongly joined as Defendant there being no cause of action disclosed against it.
The absence of a cause of action is a jurisdictional question; for if a Court entertains a matter and deliver a judgment in respect of a case in which it has no jurisdiction and in respect of which no action is disclosed, then the judgment, no matter how eloquently written and delivered is but a nullity.
See Madukolu Vs. Nkemdilim (1962) 4 ALL NLR 341, at 193, (1962) 2SC.
Lagos State V. Dosunmu (1989) 3 NWLR (pt. 111) 652
I have read the Written Address filed by the Appellant’s Counsel, then as 5th Defendant at the trial Court, it is at pages 278–283 of the Record. It is settled by Irikife Donald Tussen, Esq in the Chambers of Akpomuje, SAN & Co and think that it has settled the Appellants position.
The Plaintiff/5th–13th Respondents’ suit, though instituted at the right forum was one without a cause of action disclosed against the Appellant and who was therefore joined wrongly. Indeed there was no privity of contract disclosed between the Appellant and the 5th–13th Respondents to have warranted any claim against the Appellant; where there is no cause of action or privity of contract, the action cannot be maintained. If taken out, it should be struck out, as against the party improperly sued. The action being incompetent, the Court has no jurisdiction thereon and ought therefore to strike out the action.
Issue one of the Appellant is resolved in favour of the Appellant.
2. whether the 5th–13th Respondents as claimants at the trial Court have the locus standi to institute the suit on behalf of several individuals with personal and distinct contract of employment and claim in a representative capacity benefits accruing to the individual workers in the suit (Grounds 6 and 7 of Additional Grounds of Appeal).
The first issue, having determined the appeal, I shall be brief on issue 2. I have read the statement of facts and the Amended pleadings with all the annextures and also the arguments of both Counsel for the parties as adopted; and I do not see in the pleadings any common interest in the 5th-13th Respondents to warrant their joint suit and in the Appellant and the 1st-4th Respondents as common Defendants, there is no common interest shown by the plaintiffs/5th-13th Respondents amongst themselves or inter se, as they were shown not to have been employed by one Employer only, but by different employers and with separate letters of employment, terms and conditions of service. This is not a fundamental right enforcement claim by the 5th–13th Respondents.
Individual employees, as each of the 5th-13th Respondents cannot validly bring a joint action in a representative action for themselves and/or on behalf of any other persons and in this case unnamed in the circumstance of the pleadings and claims made.
In JUMBO VS. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED, (1999) 13 NWLR (PT. 633)
It was held that
“there is no evidence that the alleged damaged nets belong to Jumbo House of Bonny. On the plaintiff’s evidence, the alleged damaged nets belongs to individual members of jumbo house of Bonny who are fishermen. It follows therefore that only the individual members of jumbo house whose fishing nets are damaged can sue individually. In effect, there is no common grievance to enable the plaintiffs to bring this action in a representative capacity.”
As in the instant case on appeal, the alleged wrong is only a common platform on which each individual employee can bring an action. See Adediran & Ors Vs. Interland Transport. (supra)
On the issue of representative action, I think that the submissions of the Appellant’s Counsel on same is apt and correct; so also are the referenced cases relied upon to show that it is the individual workers that can claim their respective benefits and by individual suits. I therefore, wonder wherein lies the locus of the 5th-13th Respondents in bringing a representative action in the circumstances of the facts and their pleadings. For the aforesaid, the conclusion I reach is that the trial National Industrial Court of Nigeria ought to have either struck out the entire suit or strike out the name of the Appellant, at the least.
Before I make the ultimate and consequential order, I must state that the Respondents’ seeming challenges to the competence of the appeal was not raised in accordance with the Rules of Court; however the law is that: however in elegantly and inappropriate an objection is raised, particularly as it relates to the jurisdiction of the Court, as a challenge to the competence of a suit marks of a jurisdictional challenge (see Nkemdilim’s case) it shall, nonetheless be considered. For if an action is incompetent, taking it up and deciding same will not confer competence if the Court has no jurisdiction, ab initio.
See Nkemdilim (supra).
However, as argued and already resolved (supra), the appeal was competently lodged and upon the requisite leave sought and granted for the Additional Ground raising the question of locus standi, and representative capacity.
I have had the benefit of a study of the Additional authority submitted to this Court vide the letter 29th March, 2022 on the capacity of the 5th-13th Respondents (claimants at the national industrial trial Court) to institute the suit having regards to the provisions of the Rules of the National Industrial Court of Nigeria on parties to an action as forwarded by Chief V. E. Otomiewo FIC mc, F. C Arb, MLCA for the 5th-13th Respondents, to buttress his submission that the 5th-13th Respondents could initiate their suit in the capacity they did against the Defendants having regards to the provisions of the Rules of the National industrial Court of Nigeria on parties to an action.
It is the case of ATTORNEY GENERAL AKWA-IBOM STATE & ANOR VS. ETUKEYEN & ORS (2020) LPELR 49644 CA. Suit CA/C/489/2018 decided on Friday 20th March, 2020, Calabar Division.
I have read the decision, but note that it is distinguishable from the instant case as in the case referred, it is a claim against a defendant by several persons whose interests are same or similar and from the same transaction, as against the myriads or different contracts, parties and transactions in the respective claimant/Respondents case herein.
The Defendant in the case referred is only a single entity, the Attorney General Akwa-Ibom representing the State (their common employer and their common unitary grievance of the review of the pension of the Respondents/Claimants as mandatorily stipulated in Section 210 of the 1999 Constitution (as amended) to be made after every 5 years or simultaneously with review of salaries whichever is earlier.
The Section 10 provision of the said Constitution on pension rights and mandatory periodic review, was therefore, the common contract on employment and common cause of action between the parties and for the benefits of all Claimants/Respondents who could sue individually or jointly for its enforcement and benefits there under. The decision referred cannot therefore, be faulted, but does not help the 5th-13th Respondents’ case, it being distinguishable; as more so that in the Attorney General Akwa-Ibom case supra, the plaintiffs never sued in a representative capacity as did the 5th-13th Claimants/Respondents herein.
I should say, in passing that, I have noted the fluidity in the content of the letters of engagement and the fact of non-application for joinder by the 1st-4th Respondents of the Appellant if they desired to set off or counter claim in possible indemnity claim against it, but, I have to stop here, so as not to prejudice the matter. This Court is not a legal adviser, but wonders why the collective Agreement documents or contracts in the Record were not pursued as between the parties thereto.
If I may and the judex will indeed ask, how can persons who did not participate in the suit and who are not disclosed and whose interest(s) not shown to be the same with the 5th-13th Respondents/Claimants be bound by the decision of the trial Court? The Courts do not act in vain. The Courts are not “messiahnic” Vampires on a prawl looking for who to devour or on whom to confer benefits, in the character of a father christmas.
It is a Court of Justice- A Court of law and equity. A Court of law is never hungry for jurisdiction. He that comes to equity must come with clean and open hands of full disclosure.
The appeal is allowed and consequentially the ruling delivered on 17/2/17 in Suit No. NICN/AWK/39/2015 is set aside and the suit as against the Appellant is dismissed.
JOSEPH EYO EKANEM, J.C.A.: I read the lead judgment of my learned brother, DANJUMA, JCA, which has just been delivered. I agree with the reasoning and conclusion therein.
The general rule of law is that a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. So only parties to a contract can sue and be sued on the contract even if the contract is made for the benefit of the third party. See Ikpeazu v. ACB Ltd (1965) NMLR 374. Since there was privity of contract between the Appellant and the 5th-13th Respondents, no cause of action arose against the Appellant to warrant its being joined in the suit. In the absence of cause of action against the Appellant, there was no right to sue the Appellant, and the trial Court lacked the jurisdiction to adjudicate on the matter vis-a-vis the Appellant. I therefore join my learned brother in allowing the appeal and striking out the suit as against the Appellant.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in advance, the judgment of my learned brother MOHAMMED AMBI-USI DANJUMA, JCA.
I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I too hold that the appeal has merit and I allow the same. I abide by all consequential order(s) in the lead judgment.
Appearances:
A. Akpomudje, SAN, For Appellant(s)
1st – 4th Respondents filed no Brief and not represented by Counsel
Chief V.E. Otomiewo, Esq, – for 5th – 13th Respondents For Respondent(s)