MR. EYO MOSES OGUNGWA & ORS v. MR. OLUROTIMI WILLIAMS & ANOR
(2019)LCN/13313(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of May, 2019
CA/C/251/2012
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. MR. EYO MOSES OGUNGWA
2. MR. OKON EDET ETTA
3. MR. EWA HENSHAW
4. MR. NSA EFFANGA ITA
(For themselves and on behalf of 117 former staff of Eastern Match Industries Ltd and members of National Union of Chemicals, Footwear Rubber Leather and non-metallic Products Employees) Appellant(s)
AND
1. MR. OLUROTIMI WILLIAMS
(Receiver of Eastern Match Industries Ltd)
2. SHANET WATCH INDUSTRIES LTD Respondent(s)
RATIO
CONDITIONS FOR AN ACTION TO LIE IN A REPRESENTATIVE CAPACITY
The jurisprudential postulate underlying suits in representative capacities is that the person or persons suing or depending in a representative capacity must have the same interest in the proceeding. This means that parties on record and those they represent must have common interest. Thus, the subject matter must evince a common interest as opposed to diverse interests, common grievance and reliefs sought must in their nature, be beneficial to all the representatives and those represented. Similarity of interest would not suffice in the absence of a commonality of interest. See IGHEDO V P.H.C.N. PLC (2018) 9 NWLR (pt 1623) 51 at 82 ? 83.
For an action to lie in a representative capacity, the following conditions or ingredients must exist:
(a) There must be a common interest;
(b) There must be a common grievance and;
(c) The relief claimed must be beneficial to all. PER SHUAIBU, J.C.A.
WHETHER OR NOT A RECORD OF APPEAL MUST BE PROPERLY COMPILED TO GUARANTEE ITS CORRECTNESS
A record of appeal/proceeding has to be duly and properly compiled to guarantee its correctness. It must be meticulously checked and compared with the original process/document, filed in the matter as well as the proceedings of Court. A record of appeal having been duly compiled has to be authenticated and certified as prescribed by law. Also being a public document, a record of appeal has to be certified, in conformity with the requirement of Section 111 (1) of the Evidence Act. See GARUBA V OMOKHODION (2011) 15 NWLR (pt 1269) and UKIRI V E.F.C.C. (2018) 14 NWLR (pt 1639) 195 at 207. PER SHUAIBU, J.C.A.
THE PROPER OF THE COURT WHERE THERE IS A MISJOINDER OF PARTIES AND CAUSE OF ACTION
Where there is a misjoinder of parties and cause of action, the proper order for the Court to make where the matter has been heard to conclusion would be non-suit. But where the case has not been heard on the merit, the proper order would be to set aside the claim by striking out the suit where the claim is not amendable. See C.C.B. (NIG) PLC. V ROSE (Supra) at page 46 and CHIKERE V OKEGBE (2000) 12 NWLR (pt. 681) 274. PER SHUAIBU, J.C.A.
THE IMPLICATION OF AN ORDER OR NON-SUIT
It is to be borne in mind that an order of non-suit implied that although the plaintiff has failed to prove his case against the defendant he should in fairness not be denied an opportunity of relitigating the same case. Thus, giving a plaintiff a second chance to prove his case where there has been omission detrimental to his case usually arising from the inadvertence of counsel. It is however mandatory for the Court to hear parties on the propriety of an order of non-suit before making it.
Parties in this case are ad idem that the order of non-suit was made by the learned trial judge without affording parties the opportunity to address him on it. A Court is not allowed to raise an issue suo motu and decide it without affording the parties an opportunity to be heard. This is because in doing so, the Court is seen to leave its exalted position as an arbiter and descend into the arena of conflict. It is also a violation of party?s right to fair hearing under Section 36 (1) of the 1999 Constitution (as amended) for a Court to terminate or determine a party?s case on an issue raised suo motu without hearing that party on the issue. See KUTI V BALOGUN (1978) 1 SC 53; AG. LEVENTIS NIG. PLC V AKPU (2007) 17 NWR (pt 1063) 416 and EGBUCHU V CONTINENTAL MERCHANT BANK PLC (2016) 8 NWLR (pt 1513) 192 at 213.
A judgment obtained against the principle of fair hearing no matter how well conducted, written with eloquence, is a nullity. It is not worth more than the paper it is written. In WAGBATSOMA V F.R.N. (2018) 8 NWLR (pt 1621) 199, per OKORO JSC at page 221, pas D ? E:
?My view is that since the decision of the learned trial judge was based on an issue raised and decided suo motu, the entire judgment ought to have been set aside because parties were denied fair hearing. The issue is not whether injustice has been done because of the lack of fair hearing. It is whether a party entitle to be heard before had in fact been given an opportunity of being heard. PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The appellants herein are former staff of the Eastern Match Industries Limited and members of the National Union of Chemicals Footwear, Rubber, Leather and Non-Metallic Product Union. The 1st respondent is a Lagos based legal practitioner who was appointed the receiver of Eastern Match Industries Ltd by Afribank Nigeria Plc. pursuant to the powers conferred on the Bank by a Deed of Mortgage Debenture dated 15/11/96 executed by the company in favour of International Bank for West Africa (IBWA) the predecessor of Afribank Nigeria Plc. The 2nd respondent is a match producing company that purchased the defunct Eastern Match Industries Ltd. from the 1st respondent.
?On 11/7/2002, the appellants were notified of the appointment of the 1st respondent as Receiver of Eastern Match Industries Ltd. and that arrangement was being made for payment of their outstanding entitlements. When the said entitlements were not paid, the appellants as plaintiffs, instituted suit No. HC/512/2002 at the High Court, Calabar, Cross River State claiming against the defendants (now respondents) jointly and
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severally as follows:-
1. A DECLARATION that the plaintiffs are entitled to be paid their outstanding salaries economic relief package (Adhoc), Annual leave grants, a leave days grants, housing allowances, transport allowances, gratuities and other end of service or disengagement benefits as provided for in their terms and condition of employment.
2. AN ORDER DIRECTING the defendants to forthwith pay to the plaintiffs the sum of N25,089,339.62 (Twenty-five Million, Eighty Nine Thousand, Three Hundred and Thirty Nine Naira, Sixty Two Kobo) only being their outstanding salaries allowances, gratuities and other entitlements due to the plaintiffs upon the termination of their contract of employment with Eastern Match Industries Limited.
After settlement and exchange of pleadings, the matter proceeded to trial wherein the appellants called two witnesses and tendered several exhibits marked Exhibits 1 ? 18. The 1st respondent called one witness and tendered a Deed of Discharge filed at Corporate Affairs Commission (CAC) Abuja, marked Exhibit 19. The 2nd respondent also called one witness who tendered the mortgage Deed marked Exhibit 20.
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Subsequently, the parties filed and adopted their addresses.
However, when the matter came up on the 12/10/2009, learned trial judge based on what he described as ?the interest of fairness and justice?, formulated six (6) issues and asked parties to file further or additional address in that regard. Consequently, parties readopted their written address and in a reserved and considered judgment delivered on 20th April, 2011, learned trial Judge held that the claimants? case was tantamount to a misjoinder of parties and cause of action and thus entered judgment of non-suit with N1,000.00 cost to each defendant.
Being dissatisfied with the judgment, appellants appealed to this Court on 4/7/2011 on six (6) grounds of appeal. Parties filed and exchanged briefs of argument. In appellants? amended brief of argument filed on 30/5/2017 but deemed as properly filed on 4/2/2019 the appellants distilled the following five issues for the determination of this appeal:
1. Whether the learned trial judge was right when he held that the case of the claimants as constituted at the lower Court tantamount to a misjoinder of parties and causes
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of action in flagrant violation of Order 4 Rule 2 of the High Court of Cross Rivers State (Civil Procedure) Rules, 1987 which authorized joinder of parties and their respective or several causes of action? (Distilled from ground 1).
2. Whether a judge of a Court of co-ordinate jurisdiction can overrule the decision of another judge of the same Court? (Distilled from ground 2).
3. Whether an order of non-suit can be made by a trial judge in a matter where the existing rules in respect of joinder of parties and their causes of action in one suit have been complied with by parties of the suit? (Distilled from ground 3).
4. Whether the trial judge properly evaluated and appraised the evidence before him before non-suiting the plaintiffs when he woefully failed to consider and resolved all the six issues placed before him by parties for his consideration and determination? (Distilled from ground 4).
5. Whether the decision of the learned trial judge did not occasion a miscarriage of justice when he held that the plaintiffs? pleadings do not disclose a common interest grievance. (Distilled from ground 5).
?
The 2nd respondent adopted all
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the issues for determination by the appellants. 1st respondent did not file any brief of argument and shall not be heard on this appeal.
This appeal was argued on 25/3/2019 Mr. C. A. C. Efifie, leading J. E. Ukpai for the appellants adopted and relied on the said brief in urging this Court to allow the appeal.
Mr. Imo Inyang of counsel for the 2nd respondent identified his respondent?s brief filed on 15/11/2018 and deemed as properly filed on 4/2/2019 and urged this Court to dismiss the appeal.
On the first issue, learned counsel for the appellants referred to Order 4 Rule 2 now Order 16 Rules 1 and 5 of the High Court (Civil Procedure) Rules of Cross River State which permits the joinder of parties and cause of action and contended that vide a motion filed on 16/10/2002, the appellants had sought and obtained leave to represent all the 117 former staff of the defunct Eastern Match Industries Ltd., who were also former members of the National Union of Chemicals, Footwear, Rubber, Leather and Non-Metallic Products Employees. He submitted that where more than one person have the same interest in one suit, one or more may be authorized by other
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persons interested to sue in such suits for the benefit of or on behalf of all parties so interested. He referred to HONG KONG V AJIBAWO (2010) ALL FWLR (pt 531) 1408 at 1426 and C.R.S.N. CORP V ONI (1995) 1 NWLR (pt 311) 270 at 291 ? 292 to the effect that non-joinder or misjoinder of parties will not be fatal to the proceedings.
He further submitted that to determine whether the claim of a plaintiff discloses a cause of action, the Court only needs to have regard to the statement of claim of the plaintiff. And that having regard to the appellants? claim, there is a cause of action. He referred to ONIFADE V FATODU (2008) ALL FWL (pt 401) 917 at 928.
Learned counsel for the 2nd respondent on this issue contended that the relevant rules of Court deals with joinder of causes of action by persons claiming jointly against a defendant. Thus it envisages that the claimants have joint interest to present a joint claim and may in addition add such other claims they have separately against the defendant. He however submitted that the said rules being cited and relied upon by the appellants only deals
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with joinder of causes of action but not joinder of plaintiffs. Thus, the purported leave granted by the Court does not avail the appellants as the 117 workers are not joint plaintiffs and that their names are not endorsed on the Writ of Summons.
Still in argument, counsel submitted that even when several plaintiffs are joined in an action, for same to be valid, the plaintiffs must be claiming jointly against the defendant the same claim. The appellants in the suit according to the learned counsel are not making joint claim but different and independent claims as evident in the endorsement to the reliefs. For the provisions of Order 16 Rules 1 and 5 and or Order 15 Rules 12 (ii) of the High Court (Civil Procedure). Rules, Cross River State to apply the several persons must have same interest to be represented by one or few of them. Thus, most of the authorities cited by the appellants deals with non-joinder of necessary parties and therefore not relevant to representative action. He referred to MOZIE V MBAMALU (2006) 15 NWLR (pt 1003) 466 at 472 to the effect that persons who are to be represented and the person representing them must have
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the same interest. Both must have common interest and common grievance.
In further argument, learned counsel submitted that the purported order inserted at page 13A of the record of appeal is not one of the processes certified by the Registrar who compiled the record and therefore not part o the record of the Court.
On the second issue, learned counsel of the appellants made specific reference to the Court?s order granted by Ilok J. on 22/10/2002 granting leave to the appellants to join their various causes together since they were all employees of the same company and also belonged to the same union that have similar complaint against the same respondents. He then submitted that no Court has the power to overrule the decision of another Court of co-ordinate jurisdiction. In aid, he relied on DINGYADI V INEC (2011) 10 NWLR (pt 1255) 347, at 402., MOHAMMED V OLAWUNMI (1993) 4 NWLR (pt 287) 254 and YAMMEDI V ZAREWA (2010) 11 NWLR (pt 1204) 58 at 82 ? 83.
On this issue, learned counsel for the 2nd respondent submitted that the said order being relied by the appellants is a public document by
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virtue of Section 102 of the Evidence Act, 2011 and thus it is only certified true copy of same that is relevant and admissible as evidence in accordance with Section 105 of the Evidence Act. He referred to OREDOLA OKEYA TRADING CO. V BANK OF CREDIT AND COMMERCE INTERNATIONAL (2015) ALL FWLR (pt. 806) 384.
He further submitted that the said order being an exparte ruling, same can be reconsidered during the main trial and to that extent, the learned trial judge was not estopped from reconsidering it.
On the third issue, learned counsel for the appellants submitted that an order of non-suit which is tantamount to the termination of a suit prematurely without determining all the issues on merit was not the appropriate order in the circumstances of this case. He referred to Order 16 Rule 6 of the High Court (Civil Procedure) Rules of Cross River State to contend that an order of non-suit can only be made where the trial in such a suit will be embarrassing to the parties, inconveniencing and delayed. Therefore, the remedy in this case was not to non-suit the appellants but to order separate trials. He referred to OLUSOLA V
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TRUST HOUSE PROPT. LTD (2010) 8 NWLR (pt 1795)1 at 4 ? 6.
He further submitted that before the Court can order non-suit, it has the mandatory duty to accord parties the opportunity to address it on the propriety or otherwise of such an order which was not done in this case.
On his part, learned counsel for the respondent conceeded that in making the order of non-suit in this case, the learned trial judge did not afford the parties the opportunity to address him on the propriety or otherwise but he was quick to submit that the failure was rather beneficial to the appellants who woefully failed to prove their case and thus giving them yet another opportunity.
On the fourth issue, learned counsel for the appellants submitted that it is the duty of the learned trial judge to evaluate and consider all issues placed before him by the parties. And had the trial judge properly evaluated the evidence of pw1 and DW3, he would have arrived at a different conclusion in this suit. He referred to EYO V ONUOHA (2011) 11 NWLR (pt 1257)1 at 12 ? 13 and FOLORUNSHO V WAEC (2011) ALL FWLR (pt 556) 422 at 489 to contend
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that any decision arrived at without proper or adequate evaluation of evidence cannot stand.
He further submitted that the trial Court considered only one issue out of six issues raised by the parties and that in evaluating of evidence placed by the parties, the Court is bound to consider the totality of the evidence led by each of the parties. That where a finding of fact is challenged on appeal and the Court comes to the conclusion that the evaluation by the trial Court was defective, the appellate Court has the power to undertake the necessary evaluation and this Court was urged to evaluate both the oral and documentary evidence which the trial Court has failed to do so as to come to a conclusion one way or the other.
Also on this issue, learned counsel for the 2nd respondent conceded that it is obligatory for trial Court and intermediate Courts to pronounce on all issues placed before them for determination and that the trial Court has failed to discharge this duty. He however submitted that the appropriate order ordinarily is to remit the case back to the lower Court for retrial before another judge. He further submitted that the appellants
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having failed to show any shred of evidence against the 2nd respondent; the appropriate order in the circumstance is neither to embark on evaluation nor ordering retrial but to dismiss the suit.
On the fifth issue, learned counsel for the appellants repeated his earlier submission that the appellants and others whose interest they represent were staff of Eastern Match Industries Ltd and thus have a common interest, suffered the same cause and have common grievance which is failure of the respondent to pay their arrears of salaries owed them including other terminal benefits till date. The decision of the trial Court of non-suit according to him has occasioned a miscarriage of justice. He referred to LARMIE V D.P.M.S. LTD (2005) 18 NWLR (pt 958) 438 at 463, OBIM V ACHUK (2005) 6 NWLR (pt 922) 594 at 621 and OJO V ANIBIRE (2004) 10 NWLR (pt 882) 571 to submit that any decision that is inconsistent with substantial rights of a party amounts to miscarriage of justice.
He finally urged this Court to resolve all the five issues in favour of the appellants and to allow the appeal.
?
On the part of the 2nd
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respondent, learned counsel submitted that by the pleading and the evidence adduced at the trial, the appellants and other 117 former staff of defunct Eastern Match Industries were independent employees, with different and distinct contract of employment who purportedly came together to prosecute their claims in a representative capacity. Thus, they have no common interest or grievance. He urged this Court to dismiss the appeal in its entirety.
I have carefully and meticulously considered the submissions of learned counsel on both sides on the above formulations. The five issues are intertwine and interrelated with one another. I am of the view that a resolution of the first issue will inevitably determine the remaining four issues. I shall therefore determine this appeal in the light of the first issue which will invariably overlap into the remaining four issues.
The main fuss of the appellants is that inspite of the subsisting order of a Court for joinder, the learned trial judge had suo motu, without asking for input from the parties non-suit their case and thereby causing miscarriage of justice to them.
?
The main contention here is whether
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the 117 former staff of the Defunct Eastern Match Industry Ltd have common interest and grievance and therefore can maintain a representative action against the respondents through the appellants. The jurisprudential postulate underlying suits in representative capacities is that the person or persons suing or depending in a representative capacity must have the same interest in the proceeding. This means that parties on record and those they represent must have common interest. Thus, the subject matter must evince a common interest as opposed to diverse interests, common grievance and reliefs sought must in their nature, be beneficial to all the representatives and those represented. Similarity of interest would not suffice in the absence of a commonality of interest. See IGHEDO V P.H.C.N. PLC (2018) 9 NWLR (pt 1623) 51 at 82 ? 83.
For an action to lie in a representative capacity, the following conditions or ingredients must exist:
(a) There must be a common interest;
(b) There must be a common grievance and;
(c) The relief claimed must be beneficial to all.
?
I have stated right from the onset that the appellants and
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those they represent are former staff of defunct Eastern Match Industries Ltd. In paragraphs 2, 3, 4 and 7 of the statement of claim, the appellants succinctly put their interest as follows:-
2. The plaintiffs are members of the National Union of Chemical Footwear, Rubber, Leather and Non-Metallic Products Employees (hereinafter called the union) which is an umbrella body for all workers in the chemical and non-metallic products industries.
3. The union is an affiliate of the Nigerian Labour Congress and its sole aim is to pursue and protect the interest and welfare of members and to establish mutual and harmonious working relationship between the management and members of the union within the industry.
4. The 1st plaintiff is the branch chairman of the union and was the production foreman in the defunct Eastern Match Industries Ltd (hereinafter called the company). While the 2nd, 3rd and 4th plaintiffs record are the branch vice chairman, secretary and auditor respectively. As at the time of liquidation, the 2nd plaintiff was the senior operator in the defunct company while the 3rd and 4th plaintiffs were store assistants.
7. A total of 117
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workers and members of the union were working with the defunct company before its liquidation. They were employed between 1983 and the year 2000 and rose to various grades ranging from factory workers to managers. The plaintiffs will at the trial lead evidence to show their various dates of appointments salary structures grades respective promotions and last salary point.
From the above, it is clear that the appellants and those they purports to represent are pursuing interest that is personal or domestic to each person. In the realm of master and servant relationship, although ten or thousand persons are given employment the same day under same conditions of service such contract of employment is personal or domestic to each of the persons. And in the event of breach, the persons do not have collective right to sue or be represented in a suit. See C.C.B (NIG) PLC V ROSE (1998) 4 NWLR (pt 544) 37 at 50.
Learned counsel for the appellants took solace in Order 4 Rule 2 of the High Court (Civil Procedure) Rules 1987 of Cross River State as well as the Exparte order granted on 22/10/2002 by Ilok J. permitting the appellants to bring this
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action in a representative capacity and which order the learned trial judge flagrantly refused to obey and abide. The relevant provisions of Order 4 Rule 2 of the said rules of Court provides:-
?I. (1) subject to Rule 3 a plaintiff may in one action claim relief against the same defendant in respect of two or more causes of action ?
(a) If the plaintiff claims and the defendant is alleged to be liable in the same capacity in respect of all the causes of action; or
(b) If the plaintiff claims, or the defendant is alleged to be liable in the capacity of execution or administrator of an estate in respect of one or more of the causes of action and in his personal capacity but with references to the same estate in respect of the other or others; or
(c) With leave of court.
(2) An application for leave under this rule shall be made exparte by motion before the Writ or originating summons, as the case may be, is issued and the affidavit in support of the motion shall state the grounds of the application.?
?
I have stated elsewhere in this judgment that similarity of interest would not be sufficient in the absence of a
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commonality of interest. In the instant case, the appellants and others on whose behalf they claimed in representative capacity had varied, and diverse domestic interest. Similarly; the rules of Court being relied upon by the appellants deals with joinder of causes of action as opposed to joinder of plaintiffs. Thus, the platform under which the appellants brought their representative action has been weakened, except for the exparte order which I will come to discuss later.
It is settled that all Courts established under the Constitution derives their powers and authority from the Constitution. And that once an issue has been distinctly raised and determined between the parties in a Court, neither party is allowed to re-open such issue all over again. The issue of joinder of appellants having been determined by the order of Ilok J. on 22/10/2002 shall not be reopen again. By the rule of equality of Courts, no Court has the power to overrule the decision of another Court of co-ordinate jurisdiction.
?
Learned counsel for the 2nd respondent has nonetheless challenged the veracity of the said order found at page 13A of the record of appeal contending that
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being a public document, it ought to be certified. A record of appeal/proceeding has to be duly and properly compiled to guarantee its correctness. It must be meticulously checked and compared with the original process/document, filed in the matter as well as the proceedings of Court. A record of appeal having been duly compiled has to be authenticated and certified as prescribed by law. Also being a public document, a record of appeal has to be certified, in conformity with the requirement of Section 111 (1) of the Evidence Act. See GARUBA V OMOKHODION (2011) 15 NWLR (pt 1269) and UKIRI V E.F.C.C. (2018) 14 NWLR (pt 1639) 195 at 207.
In the instant case, the order of Ilok J., at page 13A of the record of appeal being uncertified, should not be relied upon by the lower Court.
Where there is a misjoinder of parties and cause of action, the proper order for the Court to make where the matter has been heard to conclusion would be non-suit. But where the case has not been heard on the merit, the proper order would be to set aside the claim by striking out the suit where the claim is not amendable. See C.C.B. (NIG) PLC. V
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ROSE (Supra) at page 46 and CHIKERE V OKEGBE (2000) 12 NWLR (pt. 681) 274.
It is to be borne in mind that an order of non-suit implied that although the plaintiff has failed to prove his case against the defendant he should in fairness not be denied an opportunity of relitigating the same case. Thus, giving a plaintiff a second chance to prove his case where there has been omission detrimental to his case usually arising from the inadvertence of counsel. It is however mandatory for the Court to hear parties on the propriety of an order of non-suit before making it.
Parties in this case are ad idem that the order of non-suit was made by the learned trial judge without affording parties the opportunity to address him on it. A Court is not allowed to raise an issue suo motu and decide it without affording the parties an opportunity to be heard. This is because in doing so, the Court is seen to leave its exalted position as an arbiter and descend into the arena of conflict. It is also a violation of party?s right to fair hearing under Section 36 (1) of the 1999 Constitution (as amended) for a Court to terminate or determine a
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party?s case on an issue raised suo motu without hearing that party on the issue. See KUTI V BALOGUN (1978) 1 SC 53; AG. LEVENTIS NIG. PLC V AKPU (2007) 17 NWR (pt 1063) 416 and EGBUCHU V CONTINENTAL MERCHANT BANK PLC (2016) 8 NWLR (pt 1513) 192 at 213.
A judgment obtained against the principle of fair hearing no matter how well conducted, written with eloquence, is a nullity. It is not worth more than the paper it is written. In WAGBATSOMA V F.R.N. (2018) 8 NWLR (pt 1621) 199, per OKORO JSC at page 221, pas D ? E:
?My view is that since the decision of the learned trial judge was based on an issue raised and decided suo motu, the entire judgment ought to have been set aside because parties were denied fair hearing. The issue is not whether injustice has been done because of the lack of fair hearing. It is whether a party entitle to be heard before had in fact been given an opportunity of being heard.?
Learned counsel for the appellants also faulted the evaluation of evidence by the learned trial judge stressing that he merely reproduced the issues for
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determination formulated by him for the parties and reached a conclusion on one issue without considering the other remaining issues.
A bounding duty lies on the trial Court to adequately evaluate the evidence adduced by the parties for the purpose of arriving at a just and right conclusion in the adjudication of the case before it. This will invariably involve the construction of an imaginary scale for purpose of weighing the evidence of both sides with a view to determining in whose favour the pendulum of justice will tilt on the balance of probability. Thus, evaluation of evidence does not stop with assessing the credibility of witnesses but extend to a consideration of the totality of the evidence adduced on an issue to determine the totality of the evidence supports a particular finding of fact. See CHUKWU V AKINPELU (2014) 13 NWLR 359 and ADESINA V OJO (2012) 10 NWLR (pt 1309) 552.
It is not in contention that the learned trial judge did not consider all the six issues formulated by him for the parties and reached a conclusion on the first issue without considering the remaining five issues. The issue that was
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considered is ?whether or not this suit is commenced and/or prosecuted in a representative capacity?, wherein he concluded at page 230 of the record of appeal thus:
?From the foregoing, I also find and hold that the whole suit could have been properly decided upon the pleadings without the trouble, inconveniences and expenses of any evidence called. I think in the circumstances that it would be manifestly absurd to suggest that the Court should proceed to still consider and resolve the rest of the issues framed for determination, firstly because there must be an end of litigation.?
It is obligatory for trial Court and intermediate Courts to pronounce on all issues placed before them for determination in order apart from the issue of fair hearing, not to risk the possibility of that only issue or issues decided by them could be faulted on appeal. Thus, the imperativeness of considering all the issues raised is that in the event of the decision on that point being reversed on appeal, its decision on the rest of the points may then be considered by the higher Court for a final determination of the appeal. See SCC (NIG) LTD
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V ANYA (2013) ALL FWLR (pt 703) 2047 and OKONJI V NJOKANMA (1999) 14 NWLR (pt 638) 250.
Although, a Court has a duty to pronounce on all material issues raised before it but failure to do so is not necessarily fatal to a judgment if such failure did not occasion a miscarriage of justice. Also, a Court is not bound to pronounce on an issues which has been subsumed in another issue that has been determined. See OKONJI V NJOKANMA (Supra) and ADESINA V OJO (Supra).
The appellants claimed to have common interest with others on whose behalf they represent but the learned trial judge found otherwise at pages 229 ? 230 of the record of appeal as follows:-
?Now I have perused the list of the 117 former staff, Exhibit 3, and I observed that the four chairmen are numbers 11, 18, 54 and 50 respectively thereon. I also observed that ?
(a) Their dates of engagement range from 1/1/1985 to 24/6/1988 in column 4.
(b) Their years of service range from 2 ? 17 years.
(c) Their basic monthly salaries as per column 6 range from N1200 to N3080.
(d) Their take home
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monthly pay per column 9 range from N3,700 to N6,636.
(e) Their unpaid salaries including House and transport allowance from July 2000 to May 2001 range from N89,500 to N117,396 as per column 10.
(f) Their leave days grant for year 2000 range from N2640 to N6778.
(g) Their annual leave grants range from N1440 to N3696 as per column 13.
(h) Their gratuity range from N18,529 to N254,065 as per column 14 while the grand total as per column 15 range from N116,817 to N866,535.
What is important here is whether the failure to determine the remaining five issues has occasioned a miscarriage of justice on the appellants? Miscarriage of justice means failure of justice or justice which is not in consonance with the law. Ordinarily, where there is failure to consider all the issues raised, the consequential order is to remit back the case for retrial. For the reason that there is no commonality of interest, the order of non-suit which gives the appellants a second chance to relitigate is in my humble view the most appropriate and that the appellants would not be prejudiced in any way.
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?On the whole, this appeal is unmeritorious and is accordingly dismissed in its entirety. Parties shall bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Muhammed L. Shuaibu, JCA. My learned brother has painstakingly dealt with the five (5) issues nominated for the determination of this appeal.
I agree with his reasoning and conclusion. I also agree that the appeal lacks merit and stands dismissed.
I abide with the order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, MOHAMMED LAWAL SHUAIBU, JCA afforded me the privilege of reading in advance a copy of the judgment just delivered and I am in complete agreement with him in the reasoning and resolution of the issue that finally put to an end this appeal. I have nothing more to add. I too dismiss the appeal and I abide by the orders made therein the leading judgment.
?
?
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Appearances:
C.A.C. Efifie Esq. with him, J.E. Ukpai
For Appellant(s)
Imo Inyang, Esq. for 2nd RespondentFor Respondent(s)
Appearances
C.A.C. Efifie Esq. with him, J.E. UkpaiFor Appellant
AND
Imo Inyang, Esq. for 2nd RespondentFor Respondent