CO-OPERATIVE & COMMERCE BANK (NIGERIA) PLC V. MRS. AMADI ROSE U. & ORS
(1988) LCN/0054(CA)
In The Court of Appeal of Nigeria
Thursday, the 15th day of January, 1998
Case Number: CA/E/50/96
RATIO
ACTION: WHAT IS THE PRINCIPLE OF LAW GOVERNING ACTION IN A REPRESENTATIVE CAPACITY
The principle of law governing actions in a representative capacity is that all the parties represented must have a common interest. It is not the case in the suit in this appeal. PER UBAEZONU, J.C.A.
JUSTICES:
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
NIKI TOBI Justice of The Court of Appeal of Nigeria
EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria
Between
CO-OPERATIVE & COMMERCE BANK (NIGERIA) PLC Appellant(s)
AND
- MRS. AMADI ROSE U
2. EPUNDU JOSEPH
3. HUMPHREY EZE
4. PATRICK O.A. ENEDEANYA
(For themselves and on behalf of other 11 employees of the defendant retired or retrenched by the defendant) Respondent(s)
UBAEZONU, J.C.A.: (Delivering the Leading Judgment): The plaintiffs/respondents (hereinafter called “the respondents”) sued the appellant Bank for the sum of N1, 649,290,40 being sundry claims by various individuals as specified in the schedule attached to the statement of claim. The schedule is headed “Schedule of claims of C.C.B. Retired (Junior Staff) under to years”. The claimants were originally 15 in number before objection was taken as to the competence of the suit. The names of 2 persons were struck out leaving 13 names. The claim as averred in the statement of claim at page 5 of the record of appeal reads as follows:”
Wherefore the plaintiff claims as follows:
1. The sum of N1, 649,290.40 (One Million, Six Hundred and Forty-nine Thousand, Two Hundred and Ninety Naira and Forty Kobo only) in favour of the plaintiffs against the defendant being balance of the gratuities, value of earned leave and transport entitlements due to the plaintiffs from the defendant upon the compulsory lay-off of the plaintiffs by the defendant.
2. Interest on relief one above at the rate of 21 % per annum from 2nd day of May, 1994 till date of judgment and thereafter at the rate of 5% till the judgment is finally liquidated.”
The schedule referred to in paragraph 5 of the statement of claim as Annexure is at page 6 of the record of appeal.
The respondents were the staff of the appellant bank in different cadres. They were employed in the bank at different times to different offices with different salaries and different conditions of service. The action arose as a result of their compulsory retirement or retrenchment.
On being served with the statement of claim, the appellant filed a motion to strike out the suit for misjoinder of parties and causes of action. The motion was duly heard. On 28th February, 1995, the learned trial Judge delivered her ruling in which she dismissed the application. Dissatisfied with the said dismissal, the appellant has appealed to this court on three grounds of appeal. The appellant has also filed its brief of argument which was duly served on the respondents. The respondents failed to file any brief. The appellant brought a motion to hear the appeal on the appellant’s brief only since the respondents have failed to file a brief of argument. When the motion came up for hearing on the 19th May, 1997, the 1st respondent said that she conceded to the appeal being allowed in respect of herself. The appeal as it concerned the 1st respondent was accordingly allowed. Learned counsel for the appellant Chief Ugolo moved his motion to hear the appeal on his appellant’s brief only. The motion thus moved was granted as it concerned the 2nd, 3rd and 4th respondents. Hearing of the appeal was accordingly adjourned, and fresh hearing notices issued to 2nd, 3rd and 4th respondents.
In his brief, the appellant formulated three issues for determination vis:-
“(a) Whether the learned trial Judge was not in error when in dismissing the appellant’s motion he held that Order 3 rules 3 and 4 applied to the case without considering Order 3 rule 8 under which the application to strike out the suit was brought.
(b) Whether the Learned Trial Judge was not in error when he held that the suit was a representative action and not bad for misjoinder.
(c) Whether the Learned Trial Judge was not in error when he struck out the names of Epundu Joseph and Nsofor Brown from Annexure A, and held that the remaining 13 plaintiffs have a common interest, common grievance and common relief beneficial to all concerned.”
Learned counsel argued issues (a) and (b) together in his brief. He submits that he brought his motion in the lower court to strike out the suit under Order 3 Rule 8 of the High Court Rules of Anambra State applicable in Enugu State. According to counsel, Annexure A attached to the statement of claim gives the names, designations, years of service, entitlements based on basic salary, balance of claims on total emolument, value of earned leave, accrued salaries within leave period, transport allowances of 15 persons who are supposed to be the plaintiffs in this suit. It is submitted that the motion comes clearly within the purview of Order 3 Rule 8. It is further submitted that the suit is not a representative action as nobody gave any authority to any person. Counsel refers to Busai v. Osenni (1992) 4 NWLR (Pt. 237) 557; and Nwanguma v. Ikyaande (1992) 8 NWLR (Pt. 258) 192 at 200 – 201 and submits that since the respondents have no common interest or common grievance an action in a representative suit cannot be maintained. Counsel refers to Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 55; Adewoyin & ors v. Adedibu & ors (1958) WRNLR 145; Itumo & ors v. Anyim & ors. (1960) 4, E. NLR 48; Okafor & ors v. Nnaife (1973) 3 SC 85, at 94- 96.
On the third issue, the appellant complains about the striking out of the names of two of the persons whose names appear on Annexure A i.e. Epundu Joseph and Nsofor Brown. In court learned counsel urges us to allow the appeal and set aside the ruling of the lower court and strike out the suit.
Let me dispose of the third issue in this appeal. The third issue is of no relevance to the success or failure of this appeal. Beside the court’s wide powers of amendment under Order 18 of the High Court Rules of Anambra State 1988, the lower court had the powers to do what it did under Order 3 Rule 7. It provides:
“7. The court may, at any stage of the proceedings, and on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out”.
This was what the lower court did on the application of respondent’s counsel. The striking out of the names of the two persons is a non issue in this appeal.
I now come to the important issues in this appeal viz issues (a) and (b) in the appellant’s brief of argument. Four named persons – Mrs. Arnadi Rose, Epundu Joseph, Humphrey Eze and Patrick Enedeanya purported to sue “for themselves and on behalf of other 11 employees of the defendant retired or retrenched by the defendant”. Each of these 15 persons was employed on a different date as can be seen from the Annexure A attached to the statement of claim and already referred to in this judgment. Each had his/her conditions of service which conditions are personal to him/her. The cadre of each is different from another. Their years of service are different. Their entitlements based on their basic salary are different. The balance of their claims based on their total emolument is different, one from another. The value of their earned leave is different, one from another. Their six months salary in lieu of notice of retirement differs from each other. Their accrued salary within leave period is different from one another. Their transport allowances are different from one another. Their expected claims are also different. All these are borne out by Annexure A which is attached to the statement of claim and forms part of it. I say without equivocation that there can be no better example of misjoinder of parties and causes of action as is presented in this case. Each of the 15 or 13 persons for whom the named plaintiffs purported to sue for has his/her own cause of action which cannot be joined with another. The locus classicus in misjoinder of parties or causes of action is the celebrated case of Amachree & ors v. Newington, 14 WACA 97. In that case, the nine appellants as co-plaintiffs sued the respondent claiming a single amount as damages for assault and false imprisonment. At the end for the case the trial Judge non-suited the plaintiffs on the ground that it could not be said that they had jointly together a ground for instituting a suit for the damage each had suffered and each must sue separately. The plaintiffs appealed. The West African Court of Appeal held that under Order 4 Rule 2 of the Supreme Court (Civil Procedure) Rules which is in pari materia with Order 3 Rule 3 of the High Court Rules of Anambra State applicable in Enugu State joinder of plaintiffs is permitted but not joinder of causes of action.
The court held that there was no joint tort, for the damage caused to each plaintiff could only be personal to him. The suit was wrongly constituted, the court said, and a non-suit was the proper order.
The law for misjoinder of parties or causes of action in tort applies also to misjoinder of parties or causes of action in contract as in the present suit. In Smurthwaite & ors v. Hannay (1894) AC 494 the House of Lords held that the several plaintiffs who claimed to have shipped cargo in a general ship under similar bills of lading could not join in one action because each of them had a distinct and separate cause of action. In fact, the principle in Smurthwaite & or v. Hannay (supra) is identical with the principle in the case under consideration in this appeal. 15 or 13 plaintiffs who contracted individually with the appellant bank under different terms and conditions and at different times have sought to sue collectively in one suit. That cannot be. It is not the law in Nigeria as in England where the above cases were decided. In Caner v. Rigby & Co. (1896)2 Q.B. 113 a number of miners had been drowned through the flooding of a mine. The personal representatives of the deceased joined miners in one action against the proprietors of the mine, claiming that the mine had been flooded through negligence for which they (the proprietors) were responsible. It was held that the plaintiffs could not join in one action under the same rule which is similar to Order 3 Rule 3 of the High Court Rules of Anambra State. See also P. & O. Steam Navigation Co. v. Tsune Kijima (1895) A.C. 661 (Privy Council decision)It seems to me that the learned trial Judge misconstrued the provisions of Order 3 Rules 3 and 4 of the High Court Rules of Anambra State. They provide:-
Order 3 Rule “3. Where a person has jointly with other persons a ground for instituting a suit all those other persons ought ordinarily to be made parties to the suit.”
“4. Where more person than one have the same interest in one suit, one or more of such persons may be authorized by the other persons interested to sue or to defend in such suit, for the benefit of or on behalf of all parties so interested.” (Italics mine)
As regards Rule 3 of Order 3, all the plaintiffs (respondents) in this case have no JOINT interest. They have no common interest. Their interests are separate and distinct from each other. As regards rule 4 of the above Order, their interest are not the same. The interest of each of the respondents is distinct and different from the other. No one of the respondents can represent the other in the said suit in view of the distinct nature of their several interests. Representative proceeding is therefore inapplicable in the suit. The right of each of the respondents is different and distinct from the right of the other respondents. To join them together in one suit offends the rule in Amachree v. Newington (supra) and is therefore bad for misjoinder of parties and causes of action. The parties do not have a common interest or a common right. The interest of each respondent is tied to his/her contract of employment with the appellant. The terms of their contract are different from each other. Each signed a separate contract with the appellant. The principle of law governing actions in a representative capacity is that all the parties represented must have a common interest. It is not the case in the suit in this appeal. Action in a representative capacity does not apply.
The appropriate rule of court which governs the application of the appellant in the lower court is Order 3 Rule 8 of the High Court rules of Anambra State 1988. The rule provides:
“8. In case a suit states two or more distinct causes of action, but not by and against the same parties, or by and against the same parties but not in the same right, the claim may, on the application of any defendant, be amended or set aside, as justice may require”.The case states more than two distinct causes of action by different parties i.e. 15 parties before the names of two persons were struck out remaining 13 persons. It states different rights by different parties. On the application of the appellant in the court below, the course open to the court was to amend the claim or set it aside. After amending the claim by striking out the names of two of the parties the nemesis which afflicted the claim still persisted with 13 parties having different rights, interests, and remedies lumped together in one claim. This cannot be. See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 (1987) 18 NSCC (Pt. 11) 1194. If the case had been heard to conclusion and judgment given to the respondents the proper order would be a non-suit in accordance with the principle in Amachree v. Newington (supra). If the case has not been heard to conclusion the proper order would be to set aside the claim by striking out the suit where the claim is not amendable. In the circumstances of this case the proper order would be to strike out the suit where the claim is not amendable. In the circumstances of this case the proper order would be to strike out the claim.
This appeal therefore succeeds. I allow the appeal against 2nd-4th respondents and set aside the Ruling of the trial Judge dated 28th February, 1995.
In its place I strike out the suit No. E/513/94. The appellant will have the costs of this appeal against 2nd-4th respondent which I fix at N2, 000.00.
SALAMI, J.C.A.: I have read the judgment just delivered by my learned brother Ubaezonu, J.C.A. and I agree with the conclusion arrived thereat.
The named plaintiffs, in a representative capacity, brought the action resulting in this interlocutory appeal against the defendant for the sum of N1, 649,290.40 being sundry claims of various former employees of the defendant as detailed in a schedule attached to the statement of claim. The attachment to the statement of claim is Annexture A containing 15 names of the former officers of different grades and cadres and claiming different sums of money as their respective benefits.
The fifteen names contained in the said Annextures were former employees of the defendant who were laid off by their employer. These officers had separate contracts of service with their employer as they were employed at different periods and to different ranks or positions or cadre and therefore had different claims, based on their respective conditions of service, from the defendant.
The defendant then sought to defeat the action in limine by way of a motion on notice asking for an order striking out the action for misjoinder of causes of action pursuant to Order 3 rule 8 of the Anambra State High Court (Civil Procedure) Rules 1988 which is applicable in Enugu State. After the motion was moved, learned counsel for respondents asked that names of two of the plaintiffs numbers 12 and 13 on the schedule thereof be deleted therefrom, which request learned counsel for defendant opposed. The learned trial Judge in his ruling struck out the names of the two gentlemen Ekpundu Joseph and Nsofor Brown and dismissed the application reasoning that on striking out the names of the two gentlemen the suit was no longer bad for misjoinder.
The defendant, who is herein after referred to as appellant, was dissatisfied and has appealed to this court on three grounds of appeal. Thereafter, the appellant filed appellant’s brief which was duly served on the plaintiffs (hereinafter referred to as respondents) who failed to file respondents’ brief.
At the hearing of the appeal learned counsel for appellant adopted and relied on appellant’s brief.
The striking out of Messrs Ekpundu Joseph and Nsofor Brown from schedule of claims C.C.B. Re-trenched (Junior Staff) less than 10 years, two deputy managers, apparently because of their seniority or status created more problems than it solved. It left Amadi Rose U. (Mrs) another deputy manager on the list. If the removal of the two deputy managers from the list of claimants in the annexture on the ground that “they do not belong to the same class as other plaintiffs” resolves the issue, what is the effect of retention of Mrs. Amadi Rose U, another deputy manager not only on the list but also as one of the four named plaintiffs suing” for themselves” and on behalf of other eleven unnamed plaintiffs? Mr. Ekpundu
Joseph whose claim is withdrawn and struck out from the schedule because he does not belong to the same class as other plaintiff is still shown as one of the four persons “suing for themselves and on behalf of the other 11 employees of the defendant retired or retrenched by the defendant”. I do not think that this is proper. The learned trial Judge, having, on her own showing, found that the deputy managers do not fall into the same class with the respondents, she would not only strike out their names from the schedule detailing claims of plaintiffs but should have proceeded to strike out their names from the suit. By her default an absurdity whereby a party who according to the court has no claim against the appellant is allowed to maintain an action against it. Some patience or caution on the part of the learned trial Judge would have obviated or prevented such absurdity. All she had to do was to delete the names of Mrs. Amadi Rose U. and Ekpundu Joseph from the named plaintiffs leaving Humphrey Eze and Patrick A.O. Enedeanya to proceed with the suit.
Be that as it may, it seems to me that the crux of the appellant’s objection, as can be gleaned from the ruling, is that it would be “inconvenient to try the case as it is bad for misjoinder of parties and causes of action”. One has to rely on the ruling for submission of counsel in the lower court because the record of appeal does not contain argument of counsel in the court below. The appellant’s grouse against the constitution of the action in the circumstance seems to be taken care of by the provisions of Orders 3 rules 3 and 4 which deal with representative capacity or proceedings. It is not a case of joinder or misjoinder of parties or causes of action. The law for misjoinder of parties or causes of action in tort applies also to misjoinder of parties or causes of action in contract. In the case of Amachree & ors v. Newington 14 WACA 97 erstwhile West African Court of Appeal in interpreting Order 4 Rule 2 of the Supreme Court (Civil Procedure) Rules held that the rule permitted joinder of plaintiffs but not of causes of action, that there was no joint tort for damages caused to each plaintiff is personal to him. The Court, therefore, held that the suit was wrongly constituted and non-suited the plaintiffs. The interests of the parties in the instant appeal are separate and distinct for they seek reliefs in respect of several distinct items or causes of action. This is not a case of fifteen plaintiffs with each claiming his own separate amount on the same writ of summons and a joint statement of claim. Rather it is a case where four of the would be plaintiffs were selected to represent other plaintiffs who were therefore not named on the writ of summons as well as the statement of claim. That being the case the matter falls within the scope of Order 3 rules 3 and 4 of the defunct Anambra State High Court (Civil Procedure) Rules 1988 which is applicable in Enugu State. Order 3 rules 3 and 4 provide as follows –
“3. Where a person has jointly with other persons a ground for instituting a suit all those other persons ought ordinarily to be made parties to the suit.
4. Where more persons than one have the same interest in one suit, one or more of such persons may be authorised by the other persons interested to sue or to defend in such suit, for the benefit of or on behalf of all parties interested.” (Italics mine)
The governing words in Order 3 rules 3 and 4 are “jointly” and “same interest” and “benefit”. The fifteen persons listed for various claims in the schedule to the statement of claim clearly have no common or joint ground for bringing the action. Equally their interests are several and distinct from one and another. The respondents are not claiming the same sum of money in one relief rather they are claiming various sums of money arising from various and diverse causes of action. It seems that no member of the group can properly or competently bring an action in a representative capacity on behalf of the other. This is not a proper case to employ representative proceedings because the plaintiff both named and unnamed, do not have common interest and a common grievance. This rule envisages that persons who are to be represented and the person representing them should share the same interest. In the case of Oraghade v. S.J.N. Onitiju (1962) 1 SC NLR 70; (1962) 1 All NLR 32; (1962) WNLR 21 the named plaintiff had his own farm in one area of land whilst other persons he was representing each had their own separate farms in adjacent areas. The plaintiff then brought an action on behalf of himself and on behalf of other farm owners of the area against the defendant for a declaration of title to the whole area in which all the farms were situated. It was held by the erstwhile Federal Supreme Court that there was no common interest among the named plaintiff and other people and, therefore, he could not sue on their behalf. See also Market & Co. Limited v. Knight Steamship Co. Ltd. (1910) 2 K.B. 1021. In Bedford (Duke of) v. Ellis (1910) AC 1 at 8, it was held per Lord Mac-Naughten that apart from a common interest and common grievance a representative action would be proper, if, in addition, the relief sought, is in its nature beneficial to all whom the plaintiff intends to represent. In Otugunor Ogamioha & ors V. Chief D.O. Oghene & ors (1961) 1SCNLR 115 (1961) All NLR 59, 62, Taylor FJ endorsed this view of Lord MacNaughten which he described as “the fundamental principle underlying suits brought in a representative capacity”.
See also the case of Jeremiah Nsima v. Ole Nnaji & ors (1961) All NLR 441, 443 and Smith & ors v. Cardiff Corporation (1954) QB 210.
When the learned trial Judge Edozie, J. said in her ruling that –
“The scope of order 3 rules 3 and 4 of the High Court Rules allows all persons having a common right which is invaded by a common opponent to join in attacking that common opponent in respect of a common right provided the essential conditions set out in the rule are satisfied.”
she has misconceived the issue calling for determination in the application before her, even though she cited the correct authority, Order 3 rules 3 & 4, thereby fell into a grievous error. The substance of the application is that the relief sought is not beneficial to all the plaintiffs who neither shared a common interest nor a common grievance. It is, therefore, not a case that can be pursued in a representative capacity.
In the result I too allow the appeal and set aside the ruling of the learned trial Judge, Edozie, J. I endorse all the consequential orders including the order as to costs proposed in the lead judgment of my learned brother Ubaezonu, J.C.A.
TOBI, J.C.A.: I have read the judgment of my learned brother, Ubaezonu, J.C.A. and I agree with him. For parties to be joined in a suit, they must have the same or common interest, to the extent that they have a common mission or cause to pursue. Where the interests are separate, distinct or irreconcilable, a Judge will not grant an application for joinder. To grant such an application is tantamount to the court forcing persons with unidentical or unrelated causes of action in the litigation, a situation which will run against the accepted tenor or principles of justice. In the initial desire on the part of the court to save litigation time, so much confusion arises in the course of the litigation, which ultimately results in protraction of the judicial process.
In a representative action, the representants or representers must have a common interest with those represented to the extent that they stand or fall together. It does not master whether the common interest is singular or plural. What matters is that it must be the same and not distinguishable.
In the realm of master and servant, it is the law that although ten or one hundred 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. In the event of breach, the persons do not have collective right to sue or be represented in a suit.
My learned brother has taken pains to indicate or identify the different terms or conditions of service of the employees, an exercise which has clearly destroyed the order of the learned trial Judge. In the circumstances, I also allow the appeal against the respondents and set aside the 28th February 1995 Ruling of the learned trial Judge. Similarly, I abide by all the consequential orders made by Ubaezonu, J.C.A. including the order as to costs.
Appeal allowed
Appearances
Chief O. Ugolo For Appellant
AND
For Respondent
