ONYEMAECHI NWAOSU & ORS v. HFP ENGINEERING NIGERIA LIMITED (2014)

ONYEMAECHI NWAOSU & ORS v. HFP ENGINEERING NIGERIA LIMITED

(2014)LCN/7321(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of June, 2014

CA/L/985/2008

RATIO

PRACTICE AND PROCEDURE: LEAVE TO SUE IN A REPRESENTATIVE CAPACITY; WHETHER THE ORDER FOR LEAVE TO SUE IN A REPRESENTATIVE CAPACITY REMAINS BINDING AND SUBSISTING THROUGHOUT THE LIFE OF THE SUIT
To my mind, the said order granting leave to sue in a representative capacity relates back to the date of filing of the writ of summons, thereby giving it a new status in terms of the parties in the suit. Consequently, the said order for leave to sue in a representative capacity remains binding and subsisting throughout the life of the suit unless the order is challenged on appeal and altered by an appellate court. See the case of DURBAR HOTELS PLC VS ABELLA ITYOUGH & ORS (2010) LPELR 4064 CA at page 16, where this court per Okoro JCA as he then was held that:- “I also agree with the submission of the respondents that since they had sought for and obtained the leave of the Lower Court to sue in a representative capacity and the appellants not having appealed against the said order of court, they cannot be heard to complain while the order is subsisting,” per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

COURT: FUNTUS OFFICIO; WHEN DOES A COURT OF LAW BECOME FUNTUS OFFICIO

It is therefore not within the powers and competence of the same court (though presided over by another judge) to revisit, ignore or set aside its previous order duly made upon a formal application by a party in a suit. In other words, the Lower Court has become functus officio of the Ruling delivered on 14-10-96 granting leave to sue in a representative capacity and the only option left for the respondent in such a situation is to have recourse to an appeal and not by way of raising the issue in a written address. Once an issue has been raised and determined by the court between the litigating parties, the court becomes functus officio to either direct or allow parties to reopen the same issue before it for relitigation. See NNAJIOFOR VS OKONU (1985) 2 NWLR (PT 9) 686 at 688. JOHN ANAY SONS AND CO LTD VS NATIONAL CEREALS RESEARCH INSTITUTE (1997) 3 NWLR (PT 491) 1. In SANUSI vs AYOOLA (1992) 11 – 12 SCNJ 142, the Supreme Court per Karibi whyte JSC put it this way:-
“There is the well settled elementary and fundamental principle of law that a court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such case. See EKERELE VS EKE (1925) 6 NLR 118, AKINYEDE VS. THE APPRAISER (1971) ALL NLR 162. It cannot assume the status of an appellate court over its own decision, except there is statutory power to do so.” per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

LABOUR: CONTRACT OF EMPLOYMENT; WHETHER EMPLOYEE DO NOT HAVE COLLECTIVE RIGHT TO SUE OR BE REPRESENTED IN A SUIT FOR BREACH OF CONTRACT
I am of the humble opinion that an action in representative capacity cannot be maintained considering the circumstances and facts of this case. In the case of Bossa V. Julius Berger (supra), it was held that in the realm of master and servant relationship even though ten or more persons are given employment the same day under the same condition of service the contract of employment is personal or domestic to each of the persons. See also CCB (Nig) Plc V. Rose (1998) 4 NWLR (Pt.544) pg. 37
It was further held that in the event of breach of contract, such persons do not have q collective right to sue or be represented in the suit, See also the case of Adediran v. Interland Transport Ltd (1991) 9 NWLR (Pt. 219) at pg 183 paragraph F. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRACTICE AND PROCEDURE: LEAVE TO SUE IN A REPRESENTATIVE CAPACITY; CONDITIONS TO BE SATISFIED BY A PARTY WHO SEEKS FOR LEAVE TO SUE IN A REPRESENTATIVE CAPACITY
The Supreme Court in OLATUNJI VS THE REGISTRAR CO-OPERATIVE SOCIETIES (1968) NMLR 393 laid down the conditions to be satisfied by a party who seeks for leave to sue in a representative capacity. They are:-
“(1) There must be numerous persons interested in the case or the side to be represented.
(2) All those interested must have the same interest in the suit i.e. their interest must be joint and several.
(3) All of them must have the same grievance.
(4) The proposed representative must be one of them, and
(5) The relief sought must be in its nature, beneficial to all the persons being represented.”
The above conditions were equally acknowledged with approval by the apex court in OFIA v. EJEM (2006) 11 NWLR (PT 992) 652. See also EJEZIE VS ANUWU (2008) 12 NWLR (PT.1101) 446. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRACTICE AND PROCEDURE: LEAVE TO SUE IN A REPRESENTATIVE CAPACITY; THE DUTY OF THE PARTY WISHING TO SUE OR DEFEND IN A REPRESENTATIVE CAPACITY TO OBTAIN THE AUTHORIZATION TO SUE OR DEFEND FROM THE PERSON OR PERSONS HE WISHES TO REPRESENT

A representative is a person authorized to act or speak for another or others. Therefore means that, the party wishing to sue or defend in a representative capacity must obtain the authorization to sue or defend from the person or persons he wishes to represent. Okukuje v. Akwido (2001) 10 WRN pg.1 It is not in all cases that the court will hold that a party has no authority to sue in a representative capacity where there is no formal authorization by way of documents. The court adopts a flexible attitude, based on the facts and circumstances of each case Adukwu v. Commissioner for Works, Enugu State (1997) 2 NWLR (Pt.489) pg. 588. Failure to obtain the leave of court to sue in a representative capacity is not fatal as to vitiate the proceedings. The court cannot strike out or dismiss an action just because the plaintiff did not obtain the leave of the court to sue in a representative capacity. Osuyumbo v. Ookoya (2002) 16 NWLR (Pt.793) pg.224. per. UZO I. NDUKWE-ANYANWU, J.C.A. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

1. ONYEMAECHI NWAOSU
2. OJOMU LAWAL
3. EMMANUEL ONWUKA
(Suing for themselves and on behalf of 248 employees of HEP Engineering (Nig.) Ltd dismissed by the company on 8/2/96) Appellant(s)

AND

HFP ENGINEERING NIGERIA LIMITED Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State delivered by J. O. Pedro J. On the 26th September 2007, wherein the claimants suit No LD/2690/96 was struck out because the claim as constituted could not be heard in a Representative capacity.
The appellants herein had as Plaintiffs in the Lower Court filed a writ of summons and statement of claim dated 27th August 1996 wherein they sought the following reliefs against the defendant. (now Respondent).
(i) A DECLARATION that the purported dismissal of the plaintiffs by the defendant as published in the Daily Times of 8/2/96 constitutes a flagrant violation of the plaintiffs right to fair hearing guaranteed under S. 33(1) of the 1979 constitution, Article 7 of the African Charter on Human and People Rights. (Ratification and Enforcement) act, Cap 10, Laws of the Federation of Nigeria 1990 and customary international law and is therefore, unfair, wrongful, unlawful, null and void.
(ii) A DECLARATION that the purported dismissal being a disciplinary measure, having regard to its antecedents and surrounding circumstances was wrongful, unlawful, and void in that the plaintiffs were neither warned nor notified of the reasons thereof.
(iii) A DECLARATION that the defendant was not competent to terminate the plaintiffs’ employment for a crime cognisable under the criminal code before trial of the plaintiffs by a court of competent jurisdiction.
(iv) AN ORDER quashing the purported termination of the plaintiffs’ employment by the defendant as contained in the Daily Times publication dated 8/2/96.
(v) A DECLARATION that the plaintiffs are still workers of the defendant company.

ALTERNATIVELY:
AN ORDER compelling the defendant to reinstate the plaintiffs to their position in the company without prejudice to salaries allowances promotion and other entitlements which might have accrued to them during the period of the purported determination of their employment.
(vi) A PERPETUAL INJUNCTION restraining the Defendant, its agent or privies from further interfering with the plaintiffs’ employment with the company except by a lawful procedure.
(vii) AN AWARD of the sum of N500,000.00 to each of the plaintiffs as damages for the violation of all their rights aforementioned.
Briefly put, the appellants herein who are about 248 in number are members of staff of the Respondent. Sometimes in January 1996 they discovered that there was a shortfall in the salaries of the junior staff.
They sought to get an explanation for the anomaly from the management but to no avail, hence they agreed to and infact embarked on a demonstration in the Respondent’s premises. The Respondent reacted by inviting the police to restore order. The presence of the police however resulted in violence which eventually led to destruction of the Respondent’s property. The appellants were thereafter barred from entering the Respondent’s premises. On the 8-2-96 the Respondent published a notice in some of the Daily Newspapers to the effect that all the affected employees have been dismissed from the service of the Respondent. All subsequent efforts by the employees to reach an amicable solution did not yield any positive result. Hence they filed an action in the Lower Court on 27-8-96 seeking the reliefs as earlier reproduced. The original plaintiffs are three, viz:- Onyemaechi Nwosu, Ojomu Lawal and Emmanuel Onwuka suing for themselves and on behalf of the 248 other employees of HFP Engineering (Nig) Ltd.
Subsequently, by a motion dated 17-9-96, the plaintiffs sought the order of the Lower Court for leave to sue the defendant in a representative capacity. The said prayer was granted by the Lower Court presided over by Owobiyi J. on 14-10-96. Upon the retirement of the judge, the matter was reassigned to J. O. Pedro J. for trial novo. Upon conclusion of hearing during which one witness testified for each of the parties, final written addresses were ordered filed and served and the matter adjourned for judgment. However, the learned trial judge subsequently invited the parties to file further written addresses on the propriety of the suit being brought in a representative capacity. The parties complied and in a Ruling delivered on 26-9-2007 the suit was struck out for being incompetent having been brought in a representative capacity.
The appellants were aggrieved with the said ruling and consequently filed a Notice of Appeal on the 15-11-2007. It contains three grounds of Appeal. Brief of argument were subsequently filed and served in compliance with the Rules of this court.
The Appellants’ brief of argument dated and filed on 9-11-2010 was settled by C. Atere Esq., while the Appellant’s reply brief dated and filed on 8/8/2012 was settled by Bamidele Aturu Esq.
The Respondent’s brief of argument settled by Chuka Agbu Esq. was dated and filed on 10-5-2012.

In the Appellants’ brief of argument the following two issues were formulated for determination:-
(1) Whether having regard to the circumstances of the case, the learned trial judge was right to have held that the claimants could not maintain the action collectively or in a representative capacity.
(2) Whether the learned trial judge ought not to have considered the merits of the case in addition to the issue of competence of the action.

The Respondent adopted the above two issues but with slight modifications as follows:-
(1) Whether in view of the fact that this action commenced de novo before the Lower Court and the peculiar circumstances of the Appellants’ case, the Appellants can maintain this action in a representative capacity?
(2) Whether it was necessary for the Lower Court to consider the merit of the case having determined the competence of the action against the Appellants?

I find the two issues formulated by both parties as similar in con. I will however adopt the Appellants two issues in the consideration of this appeal.

ISSUE No. 1

Dwelling on, this issue the learned counsel for the appellants noted that the appellants were granted leave to commence the suit in a representative capacity by Owobiyi J. Who was previously siesed of the matter and this fact was observed by the learned trial judge in his ruling at page 214 of the record. He added that the leave earlier granted implies that the court found that the named appellants and the persons represented had a common interest and common grievance and the case of BOSSA VS JULIUS BERGER PLC (2005) 15 NWLR (PT 948) 409 relied on by the learned trial judge indeed support the appellants case in terms of common interest or common right. It was submitted that the trial court coram Owobiyi was satisfied that the appellants as of fact had a common interest or grievance before he granted the motion exparte to sue in a representative capacity. In that regard, unless the said order is appealed against, the Lower Court can no longer reach a contrary decision on the issue whether or not there was a common interest amongst the appellants and those they represent having become functus officio on the issue.
Learned counsel also referred to the case of BOSSA VS JULIUS BERGER supra and CCB (NIG) PLC V ROSE (1998) 4 NWLR (PT 544) 37 relied on by the learned trial judge in reaching her decision that in employment cases each person should bring a separate suit, to submit that they are not applicable to the facts of this case. Firstly because the cases did not emanate from Lagos State High Court where a different Rule of Court applies. That is to say Order 14 Rule (1) of the High Court of Lagos State (Civil procedure) Rules, 1994.
It was also submitted, that, granted (but not conceded) that the court is not functus officio, the three appellants named on the suit would have sustained the action having also brought it in their own behalf in which case the Lower Court ought not to have struck out the suit. It was also pointed that the facts of the instant case is peculiar given the fact that the Respondent through a Newspaper advertisement of 8/2/96 dismissed all the ‘Junior workers” without naming any particular person and this creates a common question of law or fact to be determined as affecting the class represented by the named appellants and that is the purport of Order 14 Rule (1) because the appellants have a common interest or grievance in the subject matter of litigation. He added that the facts of the case is distinguishable from other decided cases as the appellants are not asking the court to engage in the calculation of their individual benefits.
Learned counsel therefore urged this court to hold that the learned trial judge ought not to have held that the appellants could not maintain the action collectively or in a representative capacity as she had already become functus officio having regard to the earlier order granted to sue in a representative capacity, given the peculiar facts of this case.
Responding on this issue, learned counsel for the Respondent adopted a two pronged approach. First is the effect of a trial de novo before Pedro J. on Owobiyi J.’s expired order for leave to sue in Representative Capacity.
Herein learned counsel noted that this action was commenced before Owobiyi J. who granted the appellants leave on 14/12/96 to sue in a representative capacity and upon the retirement of the said learned trial judge, the suit was reassigned to Pedro J. to commence the action de novo.
It was then submitted that the effect of commencement of the action de novo was that all proceedings, decisions, and findings by Owobiyi J. becomes ineffectual.
On the meaning of the words “De Novo”, reference was made to the following cases. EZEBO VS STATE (2005) ALL FWLR (PT.267) 1486 at 1506 and FADIORA VS GBADEBO (1978) 3 SC 219. Where Supreme Court per Amagolu JSC held that:-
….”in trials de novo the case must be proved a new or rather reproved de novo, and therefore the evidence and verdict as well as the judge’s findings at the first trial are completely inadmissible on the basis that prima facie, they have been discarded or got rid of”
It was then further submitted that the leave granted by Owobiyi J. to the appellants to commence this action in a representative capacity became, ineffectual and discarded by operation of law when the action commenced de novo before Pedro J, so the issue of being functus officio does not arise. Further reliance was placed on the following cases on the issue of trial de novo:- BABATUNDE VS P.A.S & T.A. LTD (2007) 13 NWLR (Pt.1050) 113 at 146 – 147; EKE VS AKPU (2010) ALL FWLR (PT 510) 640. Others authorities are:- BAKULE VS TANEREWA (1995) 2 NWLR (PT 380) 728; BAMAIYI VS THE STATE (2006) 12 NWLR (PT.994) 221 at 240; OMISORE VS THE STATE (2005) ALL FWLR (PT 247) 219 at 246; BRI Vs MAIRUWA (1996) 8 WNLR (PT.467) 425 at 433; KAJUBO vs STATE (1988) 1 NWLR (PT.73) 721 at 739; BABATUNDE vs PAN ATLANTIC (2007) 13 NWLR (PT.1050) 113 at 147 – 148; AUGUSTINE vs AYAKUDUE (2011) ALL FWLR (PT.595) 375 at 382- 383.

He added that from the forgoing, the case of AHMED & CO. LTD vs AIB LTD and AJAGUNDADE III VS ADEYELU was cited based on the fact that the leave to sue in a representative capacity granted by the trial court therein was extant because the said action was not heard de novo by another judge as in the present case where there was hearing de novo by Pedro J. Therefore the Lower Court was on terra firma when it disagreed with the Appellants’ counsel on the issue and refused to be bound by the earlier expired decision of Owobiyi J.
On the second point, which is whether the appellant can maintain the present action in a representative capacity in view of the peculiar circumstances of their case.
Herein, learned counsel referred to the Supreme court case of OFIA VS EJEM (2006) 11 NWLR (PT 992) 652 at 667 -558 where the Supreme court per Onnoghen JSC listed the conditions for maintaining an action in a representative capacity as follows:-
“(i) There must be numerous persons interested in the case or the side to be represented.
(ii) All those interested must have the same interest in the suit i.e. their interest, must be joint and several.
(iii) All of them must have the same grievance.
(iv) The proposed representative must be one of them, and
(v) The relief sought must be in its nature, beneficial to all the persons being represented.”
It was then submitted that the Lower Court was right to have relied on the decisions in BOSSA VS JULIUS BERGER PLC supra and CCB (NIG) PLC VS ROSE supra when it held inter alia “that an action in representative capacity cannot be maintained considering the circumstances of the case”. This is because the facts of the two cases are similar to the case of the Respondent. Reference was also made to paragraph 4 of the appellants’ claim and the testimony of PW1 at page 183 of the record as well as the finding of the Lower Court at page 217 lines 27 – 33 of the Record.
It was also submitted that BOSSA’S CASE was decided based on Order 11, Rule 8 of the High Court of Bendel State (Civil Procedure) Rules 1988 applicable to Delta State while CCB’s case was decided based on Order 3 Rules 3 & 4 of the High Court Rules of Anambra State applicable to Enugu State and both provisions of the Rules are in pari materia with Order 14 Rule 14 of the Lagos State High Court Rules of 1994 though wrongly cited as Order 14 Rule (1) by the appellants.
It was further argued that the common thread that runs through the foregoing similar provisions is that persons who intend to jointly sue as plaintiffs in a representative capacity must altogether have the same interest in the subject matter of the suit.
Learned counsel also argued that the contention of the appellants that the suit could still have been sustained by the names of the three appellants who sue also in their own behalf is not possible because the three appellants have separate employment contracts with the Respondent in which case their suing together will amount to a misjoinder of parties and/or causes vide CCB (NIG) PLC VS ROSE supra at 45 and AMACHREE VS NEWINGTON 14 WACA 97.
Also referring to relief No (i) sought by the appellants in the Lower Court, it was submitted that the law is established that parties cannot enforce their fundamental Human Rights collectively in a representative action based on the principle that “Rights” are personal and can only be enforced personally as held in BUSARI AYINDE VS ADEDOKUN AKANJI (1988) 1 NWLR (PT 68) 70 at 81; AMAJIDEOGU VS ONOAKWU (1988) 2 NWLR (PT.78) 614 at 618 and REGD. TRUSTEES, F. T. CCN VS IKWECHEGH (2000) 13 NWLR (PT 683) 108.
This court was then urged to resolve the issue in favour of the Respondent.
In their reply to the Respondent’s submission, it was contended by learned counsel for the appellants that contrary to the position of the Respondent on the issue of trial de novo and the authorities cited in support thereof, matters do not commence de novo but trials or hearings can. Therefore, a matter is either commenced or it is not, and a matter is commenced when originating processes are duly filed before the court vide ALAWODE VS SEMOH (1959) SC NLR 91. He added that the fact that a new judge was assigned to take over a case does not mean that the case commenced de novo when it was never discontinued.
Learned counsel also noted that in the instant case trial had not commenced before Owobiyi J. when he retired and Pedro J. took it over thus the issue of trial commencing de novo does not arise. So all the authorities cited by the Respondent are irrelevant to the present situation because they all relate to where trial or hearing have actually commenced and evidence adduced and morseo in FADIORA VS GBADEBO and AMEYO VS OYEWOLE cited supra by the Respondent, it related to an order for trial de novo made by an appellate court which by the said order had impliedly overruled whatever findings made by the trial court, unlike in the case of courts of co-ordinate jurisdiction. He added that in the instant case there was no order for retrial by an appellate court and the only option left for the Respondent was to have appealed against the leave to sue in a representative capacity. Therefore the order made by Owobiyi J. was still binding on the Lower Court which has become functus officio in respect of the said order.
On the point whether the appellants could maintain this action in view of the peculiar circumstances of this case. Learned counsel submitted that the authorities cited by the Respondents counsel in support of his argument are distinguishable from the facts of this case. He added that the question whether or not a group of numerous plaintiffs have a common interest in a matter is a question of fact vide AYINDE VS
AKANJI (1988) 1 NWLR (PT 68) 16.
In other words, he says, the court has a duty to scrutinize the peculiar facts of a case before drawing a conclusion on whether or not a party can sue in a representative capacity. Learned counsel then proceeded to distinguish the facts in BOSSA’s case supra and CCB’s case supra from that of this case and concluded that the decisions in the two cases are justifiable given their peculiar facts therein because the parties concerned do not have a common interest to protect.
It was further submitted that the second requirement in the case of OFIA VS EJEM supra, to the effect that “All those interested must have the same interest in the suit was satisfied by the Appellants as their interest was both joint and several.
It was also the contention of learned counsel that the fact that several persons were given different letters which seem to give the impression that there are separate causes of action cannot in all cases warrant the conclusion that they cannot institute action in a representative capacity as shown in UKPONG VS COMMISSIONER FOR FINANCE (2006) 19 NWLR (PT.1013) 187.
On the Respondent’s submission that Human Rights claims cannot be brought in a representative capacity, learned counsel submitted that there is no such restriction in law. Thus whether or not a case can be brought in a representative capacity depends on the peculiar facts of the case.
The main issue in contention herein is the status of the leave granted the appellants by Owobiyi J. to sue in a representative capacity in 1996. Pleadings were subsequently filed and exchanged and trial was to commence before the learned trial judge retired in the year 2001. The suit was then reassigned to Pedro J. (hereafter referred to as the (learned trial judge) for trial de novo. The suit eventually proceeded to full trial, filing and adoption of final written addresses and then adjournment to 26-10-2006 for judgment. However, the learned trial judge at the proceedings of the court on 23-11-2006 recorded thus at page 210 of the Record:-
COURT:- Going through the written addresses, I found that there is one issue which is very crucial to the determination of the suit, the issue was raised by the learned counsel for the defendants.
The issue is:-
(1) Whether the claimant can maintain the present action in a representative capacity.
(2) Whether the leave earlier granted was merely procedural.
(3) To further address the court on the issue of whether in the light of the case of Madukolum Vs Nkemdilim there is no feature in this case which strips the court of competence to entertain this suit.
COURT: Suit is further fixed for 11/12/2005 for further address
After all said and done, at the proceedings of the court on 8-6-2007 the parties adopted their respective further written address as ordered by the court and proceedings ended thus as shown at page 212 of the Record.
COURT:- Judgment is hereby reserved till 20-7-2007.
Surprisingly enough, what transpired next on the 26-9-2007 was emergence of a Ruling instead of a judgment. In the said the Ruling learned trial judge proceeded to strike out the suit on the ground that the claimants cannot maintain the suit in a representative capacity. The question that arises then, is, can a court after a full blown trial, filing of written addresses and adjournment for judgment turn around to write a Ruling striking out the suit when there is no notice of preliminary objection before it?
To my mind, there exists a fundamental flaw in the procedure. On the 8-6-2007 after the adoption of further written addresses as ordered by the court, the case was then adjourned to 20-7-2007 for judgment. It is therefore an anomaly for the learned trial judge to end up with producing a ruling on its own without reference to the judgment earlier on reserved after a full trial.
None of the parties in this appeal seem to have noticed this scenario except for the appellants’ who indirectly alluded to it in their issue No. 2. It is however my humble view that given the circumstance above stated, the judgment reserved by the learned trial judge on 8-6-2007 is still hanging having not been properly addressed as required by law. Nonetheless I will still proceed to address the issues in this appeal. Now while the appellants contended that the Lower Court is functus officio and thus cannot revisit the order of leave to sue in a representative’s the capacity as granted by the court coram Owobiyi J. in 1996. The Respondent is of the stance that in a trial de novo everything relating to the suit starts anew or afresh so the said leave earlier granted was no longer effective upon the matter starting de novo before Pedro J.
Learned counsel for the Respondent was magnanimous enough to refer us to a number of authorities on the principle relating to trial or hearing de novo and we thank him for the useful research effort.

Black’s Law Dictionary 9th Edition at page 1644 defines “trial de novo “as “A new trial on the entire case, that is, on both questions of fact and issues of Law – conducted as if there had been no trial in the first instance”.

In FADIORA VS GBADEBO (1978) 3 SC 219 also cited supra by the Respondent, it was held by the Supreme court that in trials de novo the case must be proved anew or rather reproved de novo, and therefore, the judges findings at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The court of second trial, therefore, is entitled to and, indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings.
In other words, the order that a matter be heard de novo in a civil case is an order made for the benefit of both parties so that the matter in dispute could be addressed and resolved on the merit. See IDAKWO VS
EJIGA (2002) 7 SC (PT 11) 168. Learned counsel for the respondent also referred to and quoted from the Supreme Court decision Per I. T. Muhammed JSC in BABATUNDE VS P.A.S. & T.A. LTD (2007) 13 NWLR (Pt.1050) 113 at 146 – 147 and it read thus:-

‘I think I need to repeat what I said sometime, on trial de novo. I observed as follows:-
“The latin maxim “de novo” connotes a new ‘fresh, a beginning’ a start etc. In other words of the authors of Black’s Law Dictionary, de novo trial or hearing means, trying a matter a new, the same as if it had not been previously rendered. New hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’ court hears matter as court of original jurisdiction and not appellate jurisdiction”.

However, in all the authorities cited and relied upon on the principle of a trial de novo. The recurring words are “trial de novo, “hearing de novo” or fresh trial.
I am therefore comfortable with the stance that a trial de novo does not include refilling a suit afresh. It thus presupposes the existence and therefore the continuation of the hearing or trial of a suit already filed. In other words, for there to be a trial de novo there must be a subsisting action filed by the claimant. It is therefore my humble view that an order of trial de novo precludes or does not extend to any action taken or any order made towards the initiation of an originating process such as the filing of a writ of summons and statement of claim.

In the instant case the appellants by a motion exparte dated 17-9-06 prayed the court for the following reliefs:-
(1) An order granting leave to the plaintiff/applicants to sue the defendants in a representative capacity.
The motion was supported by a 10 paragraph affidavit deposing to facts to justify the application and annexed as exhibit A is a list of the names and signature of the 248 persons who authorized the action to be brought in a representative capacity.
The then trial judge, Owobiyi J. after due consideration granted the appellants prayer as shown in the enrolled order at page 16 of the record as follows:-
“IT IS HEREBY ORDERED
(1) That leave be granted to the plaintiffs/applicants to sue the defendant in a representative capacity”.
To my mind, the said order granting leave to sue in a representative capacity relates back to the date of filing of the writ of summons, thereby giving it a new status in terms of the parties in the suit. Consequently, the said order for leave to sue in a representative capacity remains binding and subsisting throughout the life of the suit unless the order is challenged on appeal and altered by an appellate court. See the case of DURBAR HOTELS PLC VS ABELLA ITYOUGH & ORS (2010) LPELR 4064 CA at page 16, where this court per Okoro JCA as he then was held that:-

“I also agree with the submission of the respondents that since they had sought for and obtained the leave of the Lower Court to sue in a representative capacity and the appellants not having appealed against the said order of court, they cannot be heard to complain while the order is subsisting,”

In the instant case, the Lower Court having heard the application for leave to sue in a representative capacity and granted it accordingly, it ceases to have jurisdiction to revisit the issue in the cause of hearing the same suit because by doing so, it has assumed the status of an appellate court over its own decision. The fact that the same suit was reassigned to Pedro J. who heard the matter de novo does not change this scenario because the Ruling granting the leave to sue in a representative capacity does not relate to the hearing of evidence or any ruling made in the cause of trial in which case the authorities cited by the Respondent would have been applicable but in the instant case the order relates to the originating process which gave life to the action in litigation between the parties. In this regard such order could not have been made anew or afresh by Pedro J. For instance the order for service of the originating process when the matter was before Owobiyi J. was not reviewed or revised upon reassignment of the case to Pedro J. neither were the plaintiffs asked to file a fresh suit or reserve the one already filed a second time on the defendant. Secondly, what if there was a motion for leave to serve the defendant with the writ of summons outside jurisdiction and it was granted by Owobiyi J., would a fresh application be made again because the suit is now before another judge of the same High Court of Lagos State? Indeed, it is important to bear in mind that facts of two different cases are hardly similar. The facts of the cases relied on by the Respondent are not on all fours with the fact of this case in the sense that in most of the authorities cited, the order of trial de novo was made by the appellate courts arid after a judgment on the merit by the trial court. I therefore agree with the submission of learned counsel for the appellants that the order for leave to sue in a representative capacity made by Owobiyi J. is binding on the Lower Court which has become functus officio in respect thereof.
The conclusion reached above would ordinarily have disposed of this appeal but I will go further to address the issue of whether the appellants could maintain the action in a representative capacity. The learned trial judge had in the Ruling striking out the suit held as follows at page 217 – 218 of the Record:-
“The claim before the court as earlier stated is as contained in the Writ of summons and Statement of Claim of the Claimants dated 27th August 1996. It revolved around the dismissal of the three Claimants who are suing for themselves and on behalf of two hundred and forty-eight (248) employees in a representative capacity and who among other reliefs are claiming:
“That the court should declare their dismissal by the Defendant as wrongful and in the alternative on order for an word of N500,000,00k to each of the Claimant as damages.”
It is important at this stage to appreciate the fact that the dismissal from the averments in the pleadings and the facts before the court were all carried out on the same day and through the same publication in the newspaper. This is not in dispute. However there is nothing on record to establish that each of the persons represented have a common interest in the action. See Oragbaide V. Onitiju (1962) 1 ALL NLR 32 (1962) 1 SCNLR 70
It is trite law that in an action in a representative capacity all the parties must have a common interest or a common right, See Bossa V. Julius Berger Plc (2005) 15 NWLR (Pt.948) at pg 429-430 prghs H-A
In the instant case, where the claim before the court is for unlawful dismissal and for damages for each of the employees on the ground of breach of contract of employment, it is humble view that the interest of each party is tied to his or her contract of employment with the Defendant. The terms of their contract are different from each other. Each signed a separate contract with the Defendant and each of them must come forward to establish the contract of employment with the Defendant.
I am of the humble opinion that an action in representative capacity cannot be maintained considering the circumstances and facts of this case.
In the case of Bossa V. Julius Berger (supra), it was held that in the realm of master and servant relationship even though ten or more persons are given employment the same day under the same condition of service the contract of employment is personal or domestic to each of the persons. See also CCB (Nig) Plc V. Rose (1998) 4 NWLR (Pt.544) pg. 37
It was further held that in the event of breach of contract, such persons do not have q collective right to sue or be represented in the suit, See also the case of Adediran v. Interland Transport Ltd (1991) 9 NWLR (Pt. 219) at pg 183 paragraph F.
While one can appreciate the difficulty that will be posed by this claim if all the two hundred and forty-eight (248) Claimants are suing the Defendants in different actions, However the fact that it will lead to too many trials in our court will still not compromise the position of the Law that in a master and servant relationship, in this instance a claim involving unlawful dismissal and breach of contract of the employments of the Claimants by the Defendant; each of the Claimant has a cause of action against the Defendant and must bring a separate action to establish same.
I agree with the learned counsel for the Defendants that given the circumstances and the facts of this case since all the Claimants in this suit representing the two hundred and forty-eight (248) employees on whose behalf they sued have different interests their individual employment are personal and domestic to them and therefore there is no corporate interest sought to be protected. Each of them deserves to be allowed to pursue his cause of action against the Defendant independently. It is for the above stated reasons that I hold that the Claimants cannot maintain this present action in a representative capacity. The suit is consequently struck out.”

It seems to me however that the reasoning and conclusion of the learned trial judge is erroneous having regard to the peculiar claims of the appellants and the nature or mode of their dismissal from service by the Respondent. The learned trial made a correct observation of this fact that it is not in dispute that the dismissal of all the appellants was carried out the same day by the Respondent and through the same publication in the newspaper. He however made a volte face to hold that there is nothing on record to establish that each of the persons represented have a common interest in the action.
The Supreme Court in OLATUNJI VS THE REGISTRAR CO-OPERATIVE SOCIETIES (1968) NMLR 393 laid down the conditions to be satisfied by a party who seeks for leave to sue in a representative capacity. They are:-
“(1) There must be numerous persons interested in the case or the side to be represented.
(2) All those interested must have the same interest in the suit i.e. their interest must be joint and several.
(3) All of them must have the same grievance.
(4) The proposed representative must be one of them, and
(5) The relief sought must be in its nature, beneficial to all the persons being represented.”
The above conditions were equally acknowledged with approval by the apex court in OFIA v. EJEM (2006) 11 NWLR (PT 992) 652. See also EJEZIE VS ANUWU (2008) 12 NWLR (PT.1101) 446.

The question that arises in the instant case, is whether the appellants satisfied the requirements or conditions as laid down by the Apex court in the cases cited above and followed in others not herein mentioned.
The claim of the appellants are to my mind, clear and unambiguous. The common interest and grievance they all had was that following a disagreement with their employer i.e. the Respondent, they were all dismissed from the service of the Respondent (not through individual letters) but through a publication in the Daily Times Newspaper of 8-2-96 (Exhibit P4). The appellants who are 248 in number and faced the
common but unfortunate destiny of having their means of livelihood extinguished on the same day through a common source of publication in a newspaper now claimed as per the writ of summons dated 27/8/96 follows:-
(1) An order quashing the purported termination of the plaintiffs by the defendants as contained in the Daily Times publication dated 8-2-96.
(2) A declaration that the plaintiffs ore still workers of the defendant company.
(3) An award of the sum of N500,000 to each of the plaintiffs as damages for the violation of all their rights aforementioned.
I am indeed of the humble view that having regard to the above stated facts, the appellants have duly satisfied the five conditions as laid down by the Supreme court and are therefore justified in bringing this action in a representative capacity.
The learned counsel for the Respondent had contended that the appellants cannot maintain this action in a representative capacity because they do not have a common interest or grievance and besides they were issued individual letters of employment in their various cadres thus creating a personal contract between each of them and the Respondent and that in a master and servant relationship an action in representative capacity cannot be sustained. The authorities of BOSSA VS JULIUS BERGER PLC supra and C.C.B (NIG) PLC VS ROSE supra were heavily relied upon. The Lower Court equally relied on the cases in reaching its decision.
However, I cannot but agree with the learned counsel for the Appellants that the case of BOSSA and C.C.B are distinguishable from the facts of the instant case. In BOSSA’S case (supra) the claim was for damages for breach of contract but there were three counter affidavits from other workers who opposed the action being prosecuted on their behalf. In C.C.B’s case (supra) the claim was for the sum of N1,649,290.40k in favour of the plaintiff 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. In other words, the plaintiffs claimed damages for breach of contract of employment simpliciter.
In the case before us in this appeal, it is clear from the claim that the terms and conditions of service is not in issue. Rather the appellants seek the quashing of their dismissal enmasse through publication in a newspaper without much ado and N500,000 damages to each of them for violation of their rights.
Whether there was such violation is a matter to be addressed at the trial but the issue remains that the appellants have a common interest and grievance which they seek to protect as a group and I believe it is the most convenient approach without running foul of the law. In this regard the case of UKPONG VS COMMISSIONER FOR FINANCE cited supra by learned counsel for the appellants is quite apt in this case.
In the said case, the issue was whether 292 employees who were given separate letters for tax reassessment could bring an action challenging same in a representative capacity. The Supreme Court per Onnoghen JSC at page 218-219 of the report held that:-
“I hold the view that it is more convenient to have the issue determined in a single representative action, thon for each of the 292 employees to bring separate appeals for the same reliefs. The effect of that appeal before the High Court is like the appellants seeking a declaration that the 1st Respondent not being a tax authority has no power to reassess and demand payment of additional tax from the appellants and I hold the view that in such a situation a representative capacity would avail the appellants. I hold that to hold otherwise is to interprete the rules on representative capacity strictly which will lead to injustice and miscarriage of justice”
A recent decision of this court in DURBAR HOTELS PLC VS ABELLA ITYOUGH & 300 ORS (2010) LPELR (4064) CA is also of great relevance here. In the said case, the respondents who were plaintiffs in the trial court and numbering about 300 were employees of the Appellant.
Sometimes in 1997, the appellant directed the Respondents to proceed on six months compulsory leave to enable the appellant carry out renovation work in its property. But throughout the period they were asked to proceed on the compulsory leave till the filing of the suit, the Appellant did not pay the Respondents their salaries and allowances. This led the Respondents to bring the action in a representative capacity. At the close of the plaintiff’s case and before entering defence, the appellant brought a motion to strike out or dismiss the suit for lack of capacity to be prosecuted in a representative capacity and thus not properly constituted. The trial court dismissed the application and held that in the circumstances of the facts of the case the Respondents can bring the suit in a representative capacity. On appeal to the Kaduna Division of this court, it was held per Okoro JCA (as he then was that:-
“I am quite in support of the Ruling and decision of the court below that the Respondents had satisfied the conditions laid down in Olatunji vs Registrar – co-operative Society (supra) and Busari vs Oseni Supra in bringing this suit in a representative capacity. I so hold”.
From the totality of the above reasoning, I have come to the conclusion and I so hold that the appellants can properly bring the action in a representative capacity.
This issue is accordingly resolved in favour of the Appellants.
ISSUE NO. 2
“Whether the learned trial judge ought not to have considered the merits of the case in addition to the issue of competence of the action”
Herein, learned counsel for the appellants submitted that by law it is not advisable for trial courts, before which a full trial had taken place to simply decide the case upon a narrow technical point because it could lead to miscarriage of justice. He relied on the case of OGUNYADE VS OSHUNKEYE (2007) NWLR (PT.1057) 218. He therefore noted that in the instant case, after a full blown trial that lasted almost a decade, and after adjourning the matter for judgment, the learned trial judge ended up delivering a ruling based on what is called fundamental issue as to representative capacity raised in the final address of the Respondent. This court was therefore urged to disapprove of such procedure taken by the Lower Court but without recourse to invoking the provisions of section 15 of the Court of Appeal Act 2004 to decide the substantive matter and to allow the appeal.
For the Respondent, reference was made by learned counsel to the case of OGUNYADE VS OSHUN KEYE cited supra by the Appellants to submit that the Supreme Court merely stated the correct position of the law that a judgment must demonstrate a complete and dispassionate consideration of all the issues raised by parties and must be confined to those issues and never held that a court should proceed to determine a matter on the merits despite having declined jurisdiction to entertain the suit having found it to be unmaintainable as constituted. He added that the insistence of the Appellants that the Lower Court ought to have determined the substantive suit would have been an exercise in futility due to lack of jurisdiction vide TIZA VS BEGHA (2005) 115 NWLR (PT.949) 616 AT 638 and EMUZE VS UNIVERSITY OF BENIN (202) 8 NWLR (PT.828) 378 AT 395. Other authorities were also cited in addition to urge this court to resolve the issue in favour of the Respondent.
In their reply brief the Appellants stated that they do not intend to join issues any further on the point other than the argument earlier canvassed on their brief of argument having therein urged this court not to exercise its general powers under section 15 of the Court of Appeal Act 2004 to determine the substantive matter before the Lower Court.
I exhaustively dealt with this issue as a preliminary observation before proceeding to resolve issue No 1. At the risk of repetition, I raised the question whether a court can, after going through the whole gamut of trial, filing of final written addresses by the parties and the matter adjourned for judgment to stop short of delivering of the said judgment but rather delivered a Ruling striking out the suit – without regard to the earlier adjourned judgment. I concluded, that in my view, given the circumstance above stated that the judgment reserved by the learned trial judge on 2nd June, 2007 is still hanging, having not been properly addressed as required by law. That is to say that having invited the parties to file further addresses, on an issue that arose after adjourning for judgment, whatever the decision of the Lower Court based on the point for further address ought to form part of the substantive judgment duly adjourned after taking of evidence and final address and it is totally irregular to prepare and deliver an entirely different ruling striking out the suit without due regard to the said judgment earlier adjourned.
This issue is accordingly resolved in favour of the Appellants. In the circumstance having held that the appellants can bring the action in a representative capacity for which they sought and obtained leave of court to do.
I hold that this appeal is meritorious and it is hereby allowed. The Ruling of the Lagos State High Court delivered on 26th September, 2007 is hereby set aside.
However, I observed from the record of appeal that the action was brought in the Lower Court in 1996. It passed through the rigours of trial for a whole decade before the ill fated Ruling was delivered on the 26th September, 2007. Another seven years have passed since then. The relief sought by the appellants is for the decision of the Lower Court to be set aside and for the suit to be remitted back to the same judge for judgment on the merit of the case.
I had stated earlier that the said judgment is still hanging having not been properly delivered. An order of rehearing will definitely work injustice to the parties. Accordingly, it is ordered that this suit No.LD/2690/96 be remitted back to the Chief Judge of Lagos State for assignment to Pedro J for delivery of the pending judgment on the merit of the case.
Parties to bear their costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft from the judgment just delivered by my learned brother Oseji, JCA. I agree with his reasoning.

It is not in all cases that the court will hold that a party has no authority to sue in a representative capacity where there is no formal authorization by way of documents. The court adopts a flexible attitude, based on the facts and circumstances of each case Adukwu v. Commissioner for Works, Enugu State (1997) 2 NWLR (Pt.489) pg. 588. Failure to obtain the leave of court to sue in a representative capacity is not fatal as to vitiate the proceedings. The court cannot strike out or dismiss an action just because the plaintiff did not obtain the leave of the court to sue in a representative capacity. Osuyumbo v. Ookoya (2002) 16 NWLR (Pt.793) pg.224.

In the present case, the Plaintiff/Appellant applied and leave was granted to them to sue in a representative capacity. The case started de novo in another court.
When a case starts de-novo it does not affect the parties suing. It only affects the proceedings. The parties have already obtained leave to sue on a representative capacity. The trial court was therefore wrong to hold that the leave already obtained is void when the case started de-novo.
For this and the more robust reasoning of my learned brother, in the lead judgment, I too must allow this appeal. I abide by all the consequential orders contained therein and adopt them as mine.

JAMILU YAMMAMA TUKUR, J.C.A.: I had read before now the draft of the judgment of this court just delivered by my Lord Chukwudumebi Oseji JCA. I am in complete agreement with the reasoning and conclusion contained therein.
I too allow the appeal and abide by the consequential orders including that as to costs.

Appearances

J. NwokwuFor Appellant

AND

O. Oshobi with C. B. Onah and O. B. Ajibowu (Miss)For Respondent