KOGI STATE TRANSPORT CO. LTD & ORS v. AUPCTRE (2020)

KOGI STATE TRANSPORT CO. LTD & ORS v. AUPCTRE

(2020)LCN/14539(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, August 17, 2020

CA/A/1047/2018

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. KOGI STATE TRANSPORT COMPANY LIMITED 2. KOGI STATE GOVERNMENT 3. ATTORNEY GENERAL, KOGI STATE APPELANT(S)

And

AMALGAMATED UNION OF PUBLIC CORPORATION, CIVIL SERVICE AND RECREATIONAL SERVICES EMPLOYEES (AUPCTRE) RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT OF APPEAL HAS THE UNFETTERED RIGHT TO REFRAME AN ISSUE IN AN APPEAL WHERE IT HAS BEEN FOUND THAT THE ISSUES FORMULATED ARE INELEGANT, CLUMSY OR IMPRECISE

The starting point in the resolution of the issues raised in this appeal is to affirm positively and unequivocally that the Court of Appeal has an unfettered right to reframe an issue in an appeal where it has been found that the issues formulated are inelegant, clumsy or imprecise as long as the issues articulate and cover the grounds of appeal and the reframing of the issue leads to a more judicious and proper determination of the appeal. This was emphasized by this Court in Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt. 1086) 372, where Ogbuagu, JSC, said at page 401 paras. C – G:
“An appellate Court is not under regimental duty to take all the issue canvassed by the parties in the appeal. An appellate Court can and is entitled to reformulate issue or issues formulated by a party or parties or counsel in order to give it precision and clarity if it appears that the issues they formulated are awkward or not well framed. As a matter of procedure the Court of Appeal can formulate issue for determination and as long as the issues articulate and cover the grounds of appeal, the Supreme Court will not censure the Court of Appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed is/are anchored on the ground or grounds of appeal, the opposite party cannot complain. See Okoro v. State (1988) 5 NWLR (Pt. 94) 255, Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) 177, Awojugbagbe Light Industries Ltd v. Chinukwe (1995) 4 NWLR (Pt. 390) 379, Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12, Lebile v. The Registered Trustees of Cherubim and Serahpim Church of Zion of Nigeria, Ugbonla (2003) 2 NWLR (Pt. 804) 399, Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt. 670) 685, Ogbuanyinya v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551, Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523, Akpan v. State (1992) 6 NWLR (Pt. 248) 439”. PER ADAH, J.C.A.

DEFINITION OF THE TERM “LOCUS STANDI”

It is well known to us from the authorities of our Courts that the phrase ‘locus standi’ means ‘place of standing’. That is the right to be heard in a Court or in a tribunal or a given forum. It conversely denotes legal capacity to institute proceedings in a Court of law. It is a condition precedent to the determination of a case on its merits. In the case of A.G. Cross River State v. F.R.N. (2019) 10 NWLR (pt. 1681) 401, the Supreme Court per Ariwoola, JSC, held at page 440 as follows:
Ordinarily, when a party’s standing to sue is in issue, in an action, the question that arises is whether the person whose standing is being challenged is a proper party to request an adjudication of a particular issue but not whether the issue is indeed justiceable. See Buraimoh Oloriede & Ors. v. Oyebi & Ors. (1984) 5 SC 16; (1984) SCNLR 390.
It is trite law that it is only the person in whom is vested the aggregate of the enforceable rights in a cause that has the standing to sue. Therefore, where a person commences an action to claim a relief which on the facts of the matter is enforceable to another person, then the former person cannot succeed, for want of locus standi. The reason being that there is no dispute between them.
See also the decision in Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, A.G. Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1. The fundamental essence of locus standi is that it focuses on the party seeking to get his complaint heard before the Court. In as much as there is access to Court by all the citizenry, it is not opened to everybody to jump in to sue as a busy body over issues that he has no special interest. In the cause of action which interest endow him with the capacity to knock at the door of the Court over the matter. For an action to be maintainable, the person instituting it must have legal capacity to sue otherwise, the Court would be robbed of the jurisdiction to entertain it. There is therefore, a correlation between locus standi and the cause of action. PER ADAH, J.C.A.

THE DOCTRINE OF PRIVITY OF CONTRACT

The Supreme Court Per Iguh, JSC, restated the doctrine of privity of contract in the case of Makwe v. Nwukor & Anor. (2001) LPELR – 1830 (SC), as follows:
“It is trite law that as a general rule, a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only the parties to a contract can sue or be sued on the contract and, generally, a stranger to a contract can neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. In the same vein, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or to be sued upon the contract. See Malone v. Laskey (1907) 2 K.B. 141 CA, Camron v. Young (1908) AC 176 H.L., Beswick v. Beswick (1967) 2 All E.R. 1197, Frederick Oboye Negbenebor v. Eudora Omowunmi Negbenebor (1971) 1 All N.L.R. 210. See too Ikpeazu v. African Continental Bank Ltd (1965) 1 N.M.L.R. 374 at 397 where this Court per Ademola, C.J.N., put the matter as follows: “What advantages, if any can the bank gain from the deed, Exhibit D? Can the bank sue on it as a guarantee? Not being a party to it we are of the view that the bank cannot acquire any rights under the deed. Generally, a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon it”. See too Tweddle v. Atkinson 30 L.J.Q.B. 265 and the decision of the House of Lords in Dunlop Pneumatic Typre Co. Ltd v. Selfridge & Co. Ltd (1915) A.C. 847. Without doubt, the above general principle of law admits of a number of exceptions. These include the case of a contract made by an agent on behalf of an undisclosed principal, who again as a general rule, is entitled to sue and liable to be sued on such a contract etc”. PER ADAH, J.C.A.

THE DOCTRINE OF SANCTITY OF CONTRACT
Let it be made clear here that it is an established fact that under the law, there is sanctity of contract. This projects the fact that parties to the contract are to keep to the terms of their agreement. The agreement is never to be interfered with or breached upon by a third party/interloper who is a stranger to the contract. A person who is not a party to the contract cannot sue on it to take any benefit or enforce an obligation even if the contact was made for his benefit. In the instant case, the respondent is not privy to the contract, so she cannot sue to enforce any aspect of the contract. The locus standi reside in each of her members who is privy to the contract of employment to sue for it. A contract of employment cannot within the context and in the circumstances of this case be treated as a class action. It also cannot be a trade union event or claim since each of the employees has a separate contract with the employers. In practice, the principal purpose of a trade union is traditionally to regulate employee relations with an employer through:
a. collective bargaining (negotiation about pay and other conditions of employment).
b. consultation (discussions about business and workplace issues that affect levels of employment and terms and conditions of employment).
In labour law, a collective agreement is a joint agreement made by the employer and the union to which both are committed. Unless it is in writing and contains a provision to the contrary, a collective agreement does not constitute a legally enforceable contract. Consultation is a process where the employer discusses issues with the union. Where it is ‘genuine’ consultation, the employer will respond in details to the points made by union representatives. However, the outcome of consultation is usually a managerial decision rather than an agreement, although that managerial decision may be influenced by the representations made by the trade union representatives. Unions represent individual members in grievances and disciplinary hearings. They also provide certain financial and legal benefits to members, including assistance with claims to employment tribunals and personal injury claims. This level of assistance does not in any form confer any locus standi or capacity on a trade union to sue employer to enforce contracts the union is not privy to. PER ADAH, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

The issue of jurisdiction is fundamental to every case before the Court. It should be noted that the appellants in their amended notice of appeal by particular 2 to Ground 1 thereof conceded that a union has the right to litigate or institute an action on behalf of its members as per the earlier decision of the trial Court in another case cited therein. This concession has nothing to do with the jurisdiction of the Court, it should be noted that parties cannot by their agreement confer jurisdiction on the Court, see the case of Osi v. Accord Party & Ors. (2017) 3 NWLR (Pt. 1553) 387, where the Supreme Court per Sanusi, JSC, held as follows:“…Jurisdiction is generally a creature of Statutes, Constitution or otherwise jurisdiction to conduct cases/appeals are donated or conferred by Statutes or the Constitution. Failure to comply with any statutory or constitution provisions or the requirement prescribed by the relevant law under which an appeal may be competent and properly brought before the Court, will deprive such appellate Court of Jurisdiction to adjudicate on the appeal. See AG Lagos State v. AG of Federation (2014) 9 NWLR (Pt. 1412) 217 – 254; Tiza v. Begha (2006) 6 SC (Pt. 11) 1 page 1. It goes without saying therefore, that no Court has the power to confer or donate jurisdiction to itself. It must act within the preview or confines of the law. Similarly, jurisdiction cannot be conferred on the Court by the parties or by consent of the parties. Jurisdiction of the Court is conferred, and cannot be circumvented. It is always governed by the Constitution or Statute creating it. See Galadima v. Tambai (2000) 6 SC (Pt. 1) 196 (2000) 11 NWLR (Pt. 677) 1, African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137. PER ADAH, J.C.A.

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court of Nigeria, sitting in Abuja, in Suit No: NICN/ABJ/39/2017, delivered on the 26th day of October, 2018, Coram: Agbakoba, J.

The Respondent in this appeal was the Claimant/Plaintiff while the Appellants were the Defendants. The reliefs claimed by the Respondent at the lower Court are:
1. A declaration that the employment of the Claimant’s members constituted in this Suit subsists and can only be determined by strict compliance with extant labour laws including Public Service Rules applicable to Kogi State Civil Service.
2. A declaration that the 1st and 2nd Defendants are indebted to the Claimant’s members constituted in this Suit in the total sum of N338,396,941.66 (Three Hundred and Thirty-Eight Million, Three Hundred and Ninety-Six Thousand, Nine Hundred and Forty-One Naira, Sixty-Six Kobo) being arrears of salaries and allowances from August, 2011 to December, 2016.
3. An order compelling the Defendants to pay the total sum of N338,396,941.66 (Three Hundred and Thirty-Eight Million, Three

Hundred and Ninety-Six Thousand, Nine Hundred and Forty-One Naira, Sixty-Six Kobo) being arrears of salaries and allowances from August, 2011 to December, 2016 to Claimant’s members constituted in this Suit forthwith.
4. An order compelling the Defendants to pay the total sum of N4,987,796.76 (Four Million, Nine Hundred and Eighty-Seven Thousand, Seven Hundred and Ninety-Six Naira, Seventy-Six Kobo) monthly to Claimant’s members constituted in this Suit from January 2017 till the final determination of this Suit.
5. An order compelling the Defendants to immediately allow the Claimant’s members constituted in this Suit to resume their duties in the 1st Defendant forthwith.
6. Cost of this action in the sum of N10,000,000.

Issues were joined by the parties before the lower Court. The lower Court at the end of the trial, entered judgment in favour of the Claimant/Plaintiff who is the respondent in this appeal and ordered as follows:
a. That the 1st and 2nd Defendants are indebted to the Claimant’s members constituted in this Suit in the total sum of N338,396,941.66 (Three Hundred and Thirty-Eight Million, Three

Hundred and Ninety-Six Thousand, Nine Hundred and Forty-One Naira, Sixty-Six Kobo) being arrears of salaries and allowances from August, 2011 to December, 2016.
b. That the Defendants are hereby ordered to pay the total sum of N338,396,941.66 (Three Hundred and Thirty-Eight Million, Three Hundred and Ninety-Six Thousand, Nine Hundred and Forty-One Naira, Sixty- Six Kobo) being arrears of salaries and allowances from August, 2011 to December, 2016 to Claimant’s members constituted in this suit forthwith.
c. That the Defendants are hereby ordered to pay the Claimants monthly their due salaries until recalled or properly terminated in line with their contract.
d. Cost of this action in the sum of N500,000.00

In all, reliefs 1 and 5 were refused by the trial Court while reliefs 4 and 6 were granted in part, (pages 597 – 598 of the records).

Aggrieved by this decision, the appellants appealed to this Court vide the notice of appeal filed on 13th day of November, 2018 and with the Leave of this Court, the Appellant further filed Amended Notice of Appeal on 24th July, 2019 which was deemed properly filed and served on 23rd March,

2020.

The record of appeal was transmitted on 16th of November, 2018. The appellants filed the appellants’ brief on 26/07/2019 while the respondent filed the respondent’s brief of 14th day of August, 2019, both briefs were deemed properly filed and served on 23/03/2020.

Appellants’ Reply Brief on Point of Law was filed on the 17th day of September, 2019 also deemed on 23rd March, 2020.

The appellants framed three issues for determination. These issues are as follows:
1. Whether the learned trial Judge was right when he held that the Appellants have not adduced any evidence of termination or any evidence of the date to enable the Court make a determination as to whether the Respondent’s suit was statute barred in view of the provision of Section 2(a) of the Public Officers Protection Act 2004. (Distilled from Ground 2 of the Notice of Appeal).
2. Whether the learned trial Judge was right when he failed to consider the issue of whether the Respondent is possessed of the requisite locus standi to have instituted this suit on behalf of its purported members constituted in this appeal. (Distilled from Ground 1 of the

Notice of Appeal).
3. Whether the purported members of the Respondent constituted in this appeal were disengaged by the Appellants in line with their terms and conditions of employment. (Distilled from Grounds 3 and 4 of the Notice of Appeal).

The respondent in its own Brief also distilled three issues which are framed as follows:
1. Whether the learned trial Judge was not right when he held that the Appellants have not adduced any evidence of termination or any evidence of the date to enable the Court make a determination as to whether the Respondent’s suit was statute barred? (Ground 2 of the Notice of Appeal).
2. Whether the learned trial Judge accorded the Appellants fair hearing before holding that the Respondent has locus standi to maintain the suit on behalf of its members in the 1st Appellant? (Ground 1 of the Notice of Appeal).
3. Whether having not issued and served termination letters on the Respondent members constituted in the suit, their employment subsists in line with terms of the employment? (Ground 3 of the Notice of Appeal).

I have carefully gone through the laborious and extensive arguments of the parties

in their respective briefs of argument in the instant case. The issues framed by the parties appear to be an overlay of the main issue underlying this appeal. It was the Respondent in their own brief that really struck at the fundamental issue underlying this appeal. At paragraph 4.28 of page 16 of the Respondent’s brief of argument, the real issue for determination in this appeal was well laid out by the Respondent. The learned counsel for the Respondent posited at the paragraph 4.28 of his brief as follows:
My lords, this appeal is not on the admissibility of Exhibit C20. There is no ground of appeal in this regard. This appeal is predicated on whether the Respondent has locus standi to maintain the action on behalf of its members in the 1st Appellant and same was resolved in favour of the Respondent when the learned trial Court held that the Respondent has locus standi to institute the action.

This issue truly was the 1st issue raised by the 1st to 3rd Appellants as Defendants before the lower Court. This was captured at pages 588 and 596 of the record of appeal in the judgment of the trial Court as follows:

With regard to issue 1: Whether the Claimant suing as Amalgamated Union of Public Corporation Civil Service Technical and Recreational Services Employees (AUPCTRE) possess the requisite locus standi to institute this action.
…
The right of a Union to litigate or institute an action on behalf of its members has been well settled in the case of The MANAGEMENT OF INDUSTRIAL FARM EQUIPMENT V. IRON AND STEEL SENIOR STAFF ASSOCIATION OF NIGERIA. Unreported Suit No: NIC.ABJ/44/2012 delivered on 12th December, 2012. I resolve this issue for the Claimants.

This issue of locus standi has been ingrained in the controversy of the parties from the trial Court to this Court. At the trial Court, the parties’ pleadings raised the issue of locus standi. At pages 322 to 326 of the Record of Appeal is the 1st to 3rd Defendants’ Joint Statement of Defence, the appellants at paragraphs 1, 2, 21 and 22 averred as follows:
1. The 1st – 3rd Defendants deny paragraphs 1, 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the Statements of facts and will at the trial put the claimant to the strictest proof thereof.
2. In addition

to the averment in paragraph 1 above, the 1st – 3rd Defendants state that they have no relationship, obligation or contractual relationship with the claimant to warrant or justify this suit.
…
21. The 1st – 3rd Defendants shall contend at the trial of this suit that the suit as instituted is incompetent.
22. Whereof the 1st – 3rd Defendants urge this Court to dismiss this suit for being baseless, incompetent, vexatious and gold digging as it cannot be supported under our law.

The Claimant, now Respondent in her amended reply at page 482 averred in paragraphs 1 and 2 as follows:
1. The averments in paragraph 2 of the Statement of Defence are not true. The Claimant’s members have contractual relationship with the 1st and 2nd Defendants. The Claimant’s members are employees of the 2nd Defendant serving in the 1st Defendant.
2. The Claimant is the trade union unionizing the workers in the 1st Defendant. The 1st Defendant in time past remits check off deduction from its workers’ salaries to the Claimant. A copy of the letter dated 5th January, 2009 forwarding remittance of check off deductions from workers of the

1st Defendant to the Claimant is hereby pleaded and annexed as Annexure A.

In the instant appeal, the issue of locus standi was the focus of the parties’ respective issue two which was anchored on ground 1 of the notice of appeal. Although the drafting of ground 1 of the notice of appeal tend to flag up issue of fair hearing in relation to the issue of locus standi, the subject of ground 1 of the notice of appeal is on the issue of locus standi. To put it out clearly, I would like to reproduce ground 1 of the notice of appeal verbatim. It reads as follows:
GROUND 1:
The learned trial judge did not accord appellants fair hearing as required under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended), before giving judgment against them as a result of which appellants suffered a miscarriage of justice.
Particulars:
1. The learned trial Court acted contrary to the principle of fair hearing in his judgment when it refused to consider the issue of locus standi of the Claimant/Respondent to institute this suit raised in the Defendant/Appellants’ Final Written Address save the terse pronouncement on

the issue as follows:
“The right of a Union to litigate or institute an action on behalf of its members has been well settled in the case of the Management of Industrial Farm Equipment v. Iron and Steel Senior Staff Association of Nigeria Unreported Suit No: NIC/ABJ/44/2012 delivered on 12th December, 2012. I resolve this issue for the Claimants.”
2. The Appellants conceded that a Union has the right to litigate or institute an action on behalf of its members in line with the case of Management of Industrial Farm Equipment v. Iron and Steel Senior Staff Association of Nigeria Unreported Suit No: NIC/ABJ/44/2012 (supra) cited by the learned trial Judge in his Judgment. The issue raised in the final written address of the Appellant was not that a Union cannot litigate or institute an action on behalf of its members but that the former staffers of the Defendants/Appellants were not members of the Claimant/Respondent to have clothed the Claimant/Respondent with locus standi to litigate or institute the present action on their behalf.
3. The Claimant had instituted the action on the basis that they are Civil Servants. The trial Court found

as a fact that the Claimants were not Civil Servants yet went ahead to hold that they have locus standi to institute the action contrary to law.
4. The acceptable proof of membership of a trade Union is the payment of membership dues in line with Section 16 of the Trade Unions (Amended) Act 2005. The Claimant/Respondent did not place any credible material before the trial Court in proof that the disengaged staffers of the Appellants were actually her members to have enabled the Claimant/Respondent to sue on their behalf.
5. Exhibits C20 and C12 tendered by the Respondent in proof of membership is inadmissible by virtue of Section 102 and 104 of the Evidence Act, 2011. Had the learned trial Judge considered the issue of non- admissibility of Exhibits C20 and C12 raised by Appellants, he would have come to the conclusion that there is nothing before the Court establishing a link between the former staffers of the Defendants/Appellants to the Claimant/Respondent to have clothes them with requisite locus standi to institute the present action.
6. That assuming without conceding that Exhibits C20 and C12 are admissible, the lower Court having found

that the former staffers of 1st Appellant are not Civil Servants ought to have upheld the issue of the Claimant’s lack of locus standi but nevertheless in somersault proceeded in error to hold that the suit was properly before the Court in the name of the Claimants.

The issue of locus standi as raised in issue 2 of the appellants’ brief shall therefore be looked into first. Issue of locus standi is certainly an issue of competence which define the jurisdiction of the Court over the claim. Even if the framing of the issue is not elegant, this Court has adequate jurisdiction to reframe the issue. This was the decision of the Supreme Court in the case of State v. Gambo (2019) 2 NWLR (Pt. 1655) 117, where Aka’ahs, JSC, held at pp. 132 to 133 as follows:
The starting point in the resolution of the issues raised in this appeal is to affirm positively and unequivocally that the Court of Appeal has an unfettered right to reframe an issue in an appeal where it has been found that the issues formulated are inelegant, clumsy or imprecise as long as the issues articulate and cover the grounds of appeal and the reframing of the issue leads to a

more judicious and proper determination of the appeal. This was emphasized by this Court in Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt. 1086) 372, where Ogbuagu, JSC, said at page 401 paras. C – G:
“An appellate Court is not under regimental duty to take all the issue canvassed by the parties in the appeal. An appellate Court can and is entitled to reformulate issue or issues formulated by a party or parties or counsel in order to give it precision and clarity if it appears that the issues they formulated are awkward or not well framed. As a matter of procedure the Court of Appeal can formulate issue for determination and as long as the issues articulate and cover the grounds of appeal, the Supreme Court will not censure the Court of Appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed is/are anchored on the ground or grounds of appeal, the opposite party cannot complain. See Okoro v. State (1988) 5 NWLR (Pt. 94) 255,

Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) 177, Awojugbagbe Light Industries Ltd v. Chinukwe (1995) 4 NWLR (Pt. 390) 379, Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12, Lebile v. The Registered Trustees of Cherubim and Serahpim Church of Zion of Nigeria, Ugbonla (2003) 2 NWLR (Pt. 804) 399, Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt. 670) 685, Ogbuanyinya v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551, Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523, Akpan v. State (1992) 6 NWLR (Pt. 248) 439”.
It therefore, does not amount to taking over the job of any party if the Court below reformulated the issues for determination as argued by learned counsel for the appellant.
See also the cases of N.C.C. v. Motophone Ltd. (2019) 14 NWLR (Pt. 1691) 1; Aliko v. Ogwo (2019) 15 NWLR (Pt. 1695) 331.
The most significant consideration as related to issue for determination is that such issues framed must arise from and be related to the grounds of appeal. I shall therefore, look at issue 2 as framed by the appellants.

Issue Two:
Whether the learned trial Judge was right when he failed to consider the issue of whether the Respondent is possessed of the

requisite locus standi to have instituted this suit on behalf of its purported members constituted in this appeal.

Learned counsel for the Appellants raised the issue of Locus Standi of the Respondent to institute this suit on behalf of its purported members constituted in this Appeal. He argued that the fact that there was nothing competent before the trial Court that established a nexus between the Respondent and its purported members it claimed to unionize. CW1 and CW2 who testified that the Respondent unionize them did not tender any credible evidence before the trial Court to proof its membership. After cross examination of the Respondents witness along this line, the Respondent’s counsel sought to file additional documents which we opposed but the trial judge overruled our objection and admitted it as Exhibit C12 (See pages 572, 424- 514 ,521-523 of the Record of Appeal).

Furthermore, the inadmissibility of Exhibit C12 which sought to establish a link between the Respondent and the people it purported to sue on their behalf and the argument canvassed by the Appellants was never considered by the trial Court. There was nowhere in the

judgment where the issue of the admissibility of Exhibit C12 was resolved neither was the issue of the absence of any link between the Respondent and the members it purports to represent was resolved by the trial Court. Counsel while quoting the pronouncement of the trial Court on this issue as contained in page 596 of the Record of Appeal submitted that, that was not the issue before the trial Court. He contended that the failure of the trial Court to resolve the issue is a fundamental breach of the Appellants right to be fairly heard. The law he said, is settled that all issues raised by a party must be resolved one way or the other by the Court. He cited the case of Honeywell Flour Mills Plc v. Ecobank (2018) LPELR-45127 (SC).

Learned counsel for the Appellants maintained that for the Respondent to litigate on behalf of any persons, such persons must be its members. In the instant appeal the Respondent in order to establish such evidence of membership tendered an inadmissible document marked EXHIBIT C12 and relied on it at the trial Court.

Learned counsel stated that this Court has the inherent jurisdiction to interfere and expunge the

inadmissible document (EXHIBIT C12) and if same being inadmissible document is expunged from the record of this Court, there would be nothing linking the Respondent with the members it purports to litigate on its behalf. He cited the case of Okobia v. Ajanya & Anor (1998) 6 NWLR Part 554 page 348.

He urged this Court to consider this issue and hold that the Respondent has no locus standi to institute this suit on behalf of the claimant ab initio, uphold this appeal and resolve this issue in favour of the Appellants.

In response, the learned counsel for the respondent while arguing this issue contrary to the submission of the appellants’ counsel submitted that the trial judge considered the argument of the appellants and found that the respondent has locus standi to institute the suit on behalf of its members. He maintained that the issue of locus standi as argued by both parties were considered and resolved in the judgment of the trial Court.

Counsel further argued that Exhibit C20 tendered and admitted by the trial Court clearly demonstrates and shows that the 1st Appellant has knowledge that the Respondent is the trade union

unionizing workers in the 1st Appellant as it had previously remitted check off dues on behalf of its staff to the Respondent. As for the admissibility of Exhibit C20 which the appellants’ counsel objected to, counsel referred this Court to the case of PDP v. INEC (2014) LPELR 23808 (SC), pp. 42 – 43, paras. A – B. That the argument of the appellants that the document (Exhibit C20) does not emanate from the 1st Appellant is misconceived and afterthought. That the said Exhibit is a letter on the letter headed paper of the 1st Appellant and signed by one Usman Denja Maiyaki, an officer of the 1st Appellant to the Respondent who had custody of the document until the day it was tendered before the trial Court. That the said officer who signed the letter was not called by the appellants to contradict the Exhibit in proof of their allegation/assertion. He cited the case of Lois Chituru Ukeje & Anor. v. Gladys Ada Ukeje (2014) LPELR 22724 (SC) P. 43, Paras. B – C and S.B. Olaleye v. Trustees of ECWA (2010) LPELR-4743 (CA) P.23, PARAS E-G.

He maintained that the 3 issues raised in the appellants’ Final Written Address before the learned trial judge

were all considered and resolved one way or the other. That the appellants were afforded fair hearing throughout the proceedings. That, the case of Honeywell Flour Mills Pie v. Ecobank, relied upon by the appellants does not apply in the instant appeal because all the 3 issues the appellants canvassed before the trial Court were all considered and determined. See Adeyinka Ajiboye v. Federai Republic of Nigeria (2018) LPELR – 4468 (SC) Pp. 23 – 25, Paras. D – D.

Counsel submitted that the document EXHIBIT C20 was relevant to the fact in issue and the trial Court was right in admitting the document in evidence. That the Appellants’ reliance on the case of Okobia v. Ajanya & Anor (1998) 6 NWLR (PT 554) P.348, in the circumstance of this case is misplaced and misconceived. That the case dealt with wrongful rejection of admissible evidence and not admitted documents. That Exhibit C20 was not rejected but admitted in evidence, therefore the OKOBIA’S case is inapplicable in this appeal. He urged the Court to so hold.

Counsel urged the Court to discountenance the argument of the appellants on this issue and resolve same in favour of the

Respondent.

the former person cannot succeed, for want of locus standi. The reason being that there is no dispute between them.
See also the decision in Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, A.G. Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1. The fundamental essence of locus standi is that it focuses on the party seeking to get his complaint heard before the Court. In as much as there is access to Court by all the citizenry, it is not opened to everybody to jump in to sue as a busy body over issues that he has no special interest. In the cause of action which interest endow him with the capacity to knock at the door of the Court over the matter. For an action to be maintainable, the person instituting it must have legal capacity to sue otherwise, the Court would be robbed of the jurisdiction to entertain it. There is therefore, a correlation between locus standi and the cause of action. The wrongful act of a defendant and the relief therefrom must sufficiently be tied to the interest of the plaintiff to accord him the legal capacity to approach the Court and claim. In the case of Nworika v. Ononeze- Madu, the Supreme Court held that:

a person has locus standi to sue in a Court of law if he is able to show to the satisfaction of the Court that his rights and obligations have been or are in danger of being infringed. In other words, the statement of claim must disclose sufficient legal interest and the plaintiff must show how the interest arose in the subject matter. This is a sine qua non to the exercise of jurisdiction by the Court to hear the matter on the merit.

In the instant case, the Respondent as the Claimant pleaded in paragraphs 1, 2, 11, 12, 13 and 14 of the Statement of Claim as follows:
1. The Claimant is a trade union duly registered under the relevant laws of the Federal Republic of Nigeria with powers to defend and protect the rights of its members in the employment of the 1st and 2nd Defendants.
2. The Claimant is the trade union unionizing workers in the 1st Defendant.
11. Sometimes in 2011, the salaries of members of the Claimant in the 1st Defendant were unpaid leading to arrears and backlog of salaries unpaid.
12. On 30th June, 2011, the 2nd Defendant directed the posting on the 1st Defendant’s Notice Board a notice to the effect that all the workers should

proceed on ‘compulsory leave’ and directed that the gates, offices and parks of the 1st Defendant be locked and keys returned to it. No formal communication was issued to the workers on the reason for the alleged compulsory leave and closure of the premises of the 1st Defendant till date.
The copy of the notice is hereby pleaded and annexed as ANNEXURE AUPCTRE 3.
13. The Claimant avers that before its members were prevented from working and accessing their offices on 30th June, 2011, they performed their duties in accordance with the terms of their contract and were not found wanting in any manner to warrant any disciplinary measure of compulsory leave.
14. The Claimant contends that the directive of the 2nd Defendant that its members should proceed on compulsory leave on 30th June, 2011 and the lock up of the 1st Defendant’s premises in the circumstance and manner it was directed is contrary to the terms of their contract, unlawful, null and void.

The respondent from her showing in her statement of claim is a registered trade union and she claimed she had the powers to defend and protect the rights of its members in the

employment of the Defendants. The members of the respondent have their respective contracts of employment with the appellant. The respondent by her claim in the instant case is challenging the appellants for acts that he alleged are contrary to the terms of their contract with her then members. What this signifies and what has clearly played out from the record before us is the fact that the respondent is suing to enforce the contract between her members and the appellants. She is not in any form suing in a representative capacity. She is directly suing to enforce the contract that she is not privy to. She did not make them parties and the record does not suggest that she was suing in a representative capacity. The Supreme Court Per Iguh, JSC, restated the doctrine of privity of contract in the case of Makwe v. Nwukor & Anor. (2001) LPELR – 1830 (SC), as follows:
“It is trite law that as a general rule, a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only the parties to a contract can sue or be sued on the contract and, generally, a stranger to a contract can

neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. In the same vein, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or to be sued upon the contract. See Malone v. Laskey (1907) 2 K.B. 141 CA, Camron v. Young (1908) AC 176 H.L., Beswick v. Beswick (1967) 2 All E.R. 1197, Frederick Oboye Negbenebor v. Eudora Omowunmi Negbenebor (1971) 1 All N.L.R. 210. See too Ikpeazu v. African Continental Bank Ltd (1965) 1 N.M.L.R. 374 at 397 where this Court per Ademola, C.J.N., put the matter as follows: “What advantages, if any can the bank gain from the deed, Exhibit D? Can the bank sue on it as a guarantee? Not being a party to it we are of the view that the bank cannot acquire any rights under the deed. Generally, a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon

it”. See too Tweddle v. Atkinson 30 L.J.Q.B. 265 and the decision of the House of Lords in Dunlop Pneumatic Typre Co. Ltd v. Selfridge & Co. Ltd (1915) A.C. 847. Without doubt, the above general principle of law admits of a number of exceptions. These include the case of a contract made by an agent on behalf of an undisclosed principal, who again as a general rule, is entitled to sue and liable to be sued on such a contract etc”.
Let it be made clear here that it is an established fact that under the law, there is sanctity of contract. This projects the fact that parties to the contract are to keep to the terms of their agreement. The agreement is never to be interfered with or breached upon by a third party/interloper who is a stranger to the contract. A person who is not a party to the contract cannot sue on it to take any benefit or enforce an obligation even if the contact was made for his benefit. In the instant case, the respondent is not privy to the contract, so she cannot sue to enforce any aspect of the contract. The locus standi reside in each of her members who is privy to the contract of employment to sue for it. A contract of

employment cannot within the context and in the circumstances of this case be treated as a class action. It also cannot be a trade union event or claim since each of the employees has a separate contract with the employers. In practice, the principal purpose of a trade union is traditionally to regulate employee relations with an employer through:
a. collective bargaining (negotiation about pay and other conditions of employment).
b. consultation (discussions about business and workplace issues that affect levels of employment and terms and conditions of employment).
In labour law, a collective agreement is a joint agreement made by the employer and the union to which both are committed. Unless it is in writing and contains a provision to the contrary, a collective agreement does not constitute a legally enforceable contract. Consultation is a process where the employer discusses issues with the union. Where it is ‘genuine’ consultation, the employer will respond in details to the points made by union representatives. However, the outcome of consultation is usually a managerial decision rather than an agreement, although that

managerial decision may be influenced by the representations made by the trade union representatives. Unions represent individual members in grievances and disciplinary hearings. They also provide certain financial and legal benefits to members, including assistance with claims to employment tribunals and personal injury claims. This level of assistance does not in any form confer any locus standi or capacity on a trade union to sue employer to enforce contracts the union is not privy to.

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“…Jurisdiction is generally a creature of Statutes, Constitution or otherwise jurisdiction to conduct cases/appeals are donated or conferred by Statutes or the Constitution. Failure to comply with any statutory or constitution provisions or the requirement prescribed by the relevant law under which an appeal may be competent and properly brought before the Court, will deprive such appellate Court of Jurisdiction to adjudicate on the appeal. See AG Lagos State v. AG of Federation (2014) 9 NWLR (Pt. 1412) 217 – 254; Tiza v. Begha (2006) 6 SC (Pt. 11) 1 page 1. It goes without saying therefore, that no Court has the power to confer or donate jurisdiction to itself. It must act within the preview or confines of the law. Similarly, jurisdiction cannot be conferred on the Court by the parties or by consent of the parties. Jurisdiction of the Court is conferred, and cannot be circumvented. It is always governed by the Constitution or Statute creating it. See Galadima v. Tambai (2000) 6 SC (Pt. 1) 196 (2000) 11 NWLR (Pt. 677) 1, African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137.

The truth in the instant case is that

the respondent has no locus standi to sue in this case. Where a plaintiff is held to lack the locus standi to maintain an action, the finding goes to the issue of jurisdiction as it denies the Court jurisdiction to determine the action. Jurisdiction is in other words, a radical question of competence a Court can only be competent when the case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Opobiyi & Anor. v. Muniru (2011) LPELR – 8232 (SC), Madukolu v. Nkemdilim (1962) 2 SCNLR Pg. 342, Oloriode v. Oyebi (1984) 1 SCNLR Pg. 390, Anambra State v. A.G. Federation (1993) 6 NWLR (Pt. 302) Pg. 692, Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) Pg. 669, A.G Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) Pg. 552.

From the foregoing therefore, this issue is resolved in favour of the appellants. Since the respondent has no locus standi to sue, there was no competent suit before the trial Court. The judgment was therefore, delivered without jurisdiction. The judgment is therefore, set aside.

Having come to this conclusion, the other two issues raised in this appeal have become academic and are

hereby discountenanced.

In conclusion therefore, I hold that this appeal has merit. The appeal is allowed. The judgment of the trial Court in Suit No: NICN/ABJ/39/2017, delivered on the 26th day of October, 2017, is hereby set aside.
Parties to bear their respective costs.

ABDU ABOKI, J.C.A.: I had the privilege of reading before now, a draft of the lead judgment just delivered by my Learned Brother STEPHEN JONAH ADAH, JCA. His Lordship has prudently and diligently dealt with the issues that arose for determination.

I agree with his reasoning and conclusion that the appeal is meritorious, and ought to be allowed. These findings and conclusions flowed from the evidence adduced at the trial.
It is on account of this that I also find this appeal to be meritorious. I accordingly allow same.
I abide by the Orders contained in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Stephen Jonah Adah, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

ABDULWAHAB MOHAMMED, ESQ., with him, A.M. ADOYI, ESQ., and M.O. OBAKPOLOR, ESQ. For Appellant(s)

ADUOJO ABAH, ESQ., with him, AGHAHOWA AIGBORO, ESQ., and ONOJA UGBEDEOJO, ESQ. For Respondent(s)