IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE
DATE: 29TH APRIL, 2019 SUIT NO: NICN/YEN/40/2017
1. BRIGGS DIMABO
2. DIPRIYE ALAGOA
3. JOYCE BISONG
4. TAM A. OGOLO
5. PEDRO TUBOTAMUNO
6. EZI GREGORY
7. GOODLUCK IKEZI
8. GOODFREY - IJEOKWU
9. TARI IMOLADEI
10. LARE IBRAHIM
11. IGWE COMANDO W.
12. OBURU JUSTINA
13. IGBUDU MGBECHIKWERE
14. ELECHI IFEANYI
15. EZEKIEL OKARI CLAIMANTS/RESPONDENTS
16. OBA DAVISON
17. BOMA GOODHEAD
18. KIO AWUSA
19. GEORGE NEEDAM
20. ONU OKECHUKWU
21. AMOS ORIKE
22. AMADI ONYIRI
23. ELEYE – DATUBO S.
24. SYLVANUS GEORGE I.
25. STANLEY NWACHUKWU
26. HUMPHREY DIKE
27. BONNIE BARALAYE
28. ANTHONY COOKEY
29. JAMES EGBUNU
30. MACKINTOSH NWAKAMA
31. KINGDOM IBARA
32. JEROME ONOH
33. KINGSLEY WOPARA
34. CHIKE ATAKO
35. BRAIDE DA-ONARI
36. IHUA RUFUS
37. AMADI REMINUS
38. EYO OKON
39. SUNNY NDORBU
40. FRIDAY UDO
41. GARSHON OPARA
42. NWOKOMA NWACHUKWU
43. AUGUSTINE EKE
44. FREEMAN OBARA
45. FELIX AGU MUDA
46. ILE EBERE
47. NKAKEK FINGESI
48. UDOFIA BASSEY
49. ETUGBA JOSHUA
50. THOMPSON TAMUNO CLAIMANTS/RESPONDENTS
51. TEMPLE ROBERT
52. ELIZABETH MGBOMO
53. INNOCENT MAURICE
54. JOSEPH ELIONU
55. VICTOR OZUROKE
56. ORDU KINGDOM
57. BIELONWU GLORY U.
58. OKECHUKWU MOKWENYE
59. HENRY ATURU
60. HENRY IREGBULAM
61. ETUK EBONG
62. CHUKWUEMEKAN PETERS
63. UZOR PRINCE
64. BENARD AHARANWA
65. PHILIPS LUKE
66. FEMI OMOJOLA
67. KENNETH EGWENU
68. DAN JUMBO EREFA
69. GODDY SAMPSON
1. TOTAL E & P NIGERIA LIMITED ---------- DEFENDANT/APPLICANT
2. THE ATTORNEY GENERAL
OF THE FEDERATION --------- DEFENDANT/RESPONDENT
3. THE ACCOUNTANT GENERAL
OF THE FEDERATION --------- DEFENDANT/APPLICANT
4. THE POLICE SERVICE COMMISSION--- DEFENDANT/RESPONDENT
O. K. Salawu for the Claimants/Respondents
O. J. Irerhime for the 1st Defendant/Applicant
Yahaya Abubakar for the 3rd Defendant/Applicant
No representation for the 2nd and 4th Defendants
By a Complaint and Statement of Facts filed on the 22nd of February, 2017, the Claimants initiated this suit against the defendants claiming the following reliefs:
1. A declaration that the 1st defendant discriminated against the claimants and infringe on their right of freedom from discrimination as guaranteed by the provision of section 42 of the 1999 Constitution as amended when it denied them access to its clinic and failed to pay medical allowances even though other workers in its employment are treated in the said clinic and paid medical allowance during the over 15 years period they worked for the 1st defendant as a spy police protecting it staff and properties(sic).
2. A declaration that the failure of the defendant to pay the claimants equal pay for equal work is discriminatory illegal and unfair labour practice as it denied the claimants equitable and satisfactory conditions of service while in the 1st defendant employment contrary to the provision of Article 15 of the African Charter on Human and People Rights (Ratification and Enforcement) Act, CAP. A9 Laws of the Federation of Nigeria 2010.
3. A declaration that the failure of the 1st defendant to pay the claimants their salaries allowance and fringe benefits base on its salary scale as paid to its other junior staff as directed by the police in the Conditions of Service and personal emolument of Supernumeral Police is illegal and unfair labour practice.
4. A declaration that the claimants having been purportedly employed as spy police to protect the property of the 1st defendant are entitled to be paid their 1st salaries, allowances and other fringe benefits by the 1st defendant as enjoyed employees by the 1st defendant employees but wrongly denied them during the period of their employment (sic).
5. A declaration that the claimants while in the 1st defendant employment are entitled to be paid all the benefits and allowances paid the 1st defendant employees as well as enjoyed all the rights and privilege of the 1st defendant employees which were wrongly denied them.
6. A declaration that the claimants having work as spy police protecting the property of the 1st defendant before their employment was determine on the 31st of December, 2015 are entitled to be paid substantial severance packages and allowances as enjoyed by the 1st defendant employees.(sic)
7. A declaration that the claimants having work (sic) as spy police protecting the property of the 1st defendant are entitled to be paid all unpaid salaries, allowances and fringe benefit accruable to them during the period of working for the 1st defendant but was wrongly or erroneously denied by the 1st defendant.
8. An order of court directing the 1st defendant to pay the claimants the sum of N50, 000, 000.00 (Fifty million naira) each as compensation for infringing on their Fundamental right of freedom from discriminations.
9. An order of court directing the 1st defendant to pay the claimant their accruable but unpaid salaries, allowance and other fringe benefits enjoyed by the staffs of the 1st defendant but wrongly denied the claimants which is calculated as N386, 100, 000.00 (three hundred and eighty-six million, one hundred thousand) naira only per claimant.
10. An order of court directing the 1st defendant to pay the claimants severance packages as enjoyed by the 1st defendant staff calculated at N36, 000, 000.00 (thirty six million naira) only for each claimant having served the 1st defendant for a period of 15 years and above.
This decision is in respect of the 1st and 3rd Defendants’ applications challenging the jurisdiction of the court to entertain this suit on the grounds of the suit being res judicata and non disclosure of reasonable cause of action against the 3rd defendant.
The 1st defendant’s Motion on Notice was dated 17th November, 2017 and filed on 20th November, 2017, wherein the court is urged to dismiss the suit for being an abuse of court process. The grounds for the Application are as follows:
1. The institution and prosecution of this suit against the defendants by the plaintiffs after the determination of Appeal No: CA/PH/106/2010 and after instituting Suit No: NICN/LA/233/12 (which also constitutes an abuse), by the same members of the spy police of Total E & P Nigeria Ltd in respect of the same subject matter and issue is an abuse of process of this court.
2. This case is predicated on the issue that the plaintiffs were employees of Total E & P Nigeria Ltd which had been settled by the Court of Appeal, Port Harcourt Judicial Division in Appeal No: CA/PH/106/2010 against them and they are estopped from raising the issue again.
3. The facts and issues raised as well as the reliefs sought in the plaintiffs’ complaint and statement of fact are also sought in Suit No: NICN/LA/233/12 by the same plaintiffs and the suit was brought in a representative capacity for the members of spy police of Total E & P Nigeria Ltd, the same plaintiffs in this case.
4. The plaintiffs in this suit are undoubtedly the erstwhile members of the spy police of Total E & P Nigeria Ltd, who are both parties in Appeal No: CA/PH/106/2010 and Suit No: NICN/LA/233/12, and the defendants herein are same defendants in both cases.
5. Plaintiffs cannot in law re-litigate over an issue that has been determined by the court or file two similar suits against the same defendants.
In support of the Application is an Affidavit of 10 paragraphs deposed to by one Nwankwor Anthony, a Legal Practitioner in the Law Firm of Thompson Anthony & Partners, the Solicitors to the 1st Defendant/Applicant. Annexed to the Application are three (3) documents marked exhibits A, B and C. The 1st Defendant/Applicant equally supported the Application with a Written Address wherein one issue was crafted for the determination of this Court, to wit:
Is the institution and prosecution of this suit by the plaintiffs after the final determination of Appeal No: CA/PH/106/2010 and after filing the Suit No: NICN/LA/233/2012, instituted in a representative capacity for the named plaintiffs therein and on behalf of the members of the spy police of the Total E & P Nig. Ltd not an abuse of the process of this court?
While arguing the sole issue, learned counsel for the 1st Defendant/Applicant posited that, the claimants’ case before the court is hinged on the allegation that they are employees of the 1st defendant and as such entitled to benefits as applicable to the 1st defendant’s employees. That these issues relating to the claimants’ employment with the 1st defendant and the benefits accruable to them had been finally settled by the Court of Appeal Port Harcourt Division in Appeal No: CA/PH/106/2010. That these issues having been resolved to finality, the parties are in law estopped from raising same in a subsequent suit, and that this suit constitutes an abuse of court process. See Igbeke V. Okadigbo (2013) 12 NWLR (Pt. 1368) 225 at 244 paras. G – H; and Achiakpa V. Nduka (2011) 7 SC (Pt. 111) 126.
It is the further contention of learned counsel that, the instant suit and Suit No: NICN/LA/233/2012 which was instituted in a representative capacity on behalf of members of spy police of the 1st Defendant are the same, hence this suit is an abuse of court process. That in a representative suit, it is not only the named plaintiffs that are parties to the suit, but also the persons whom the named plaintiffs purport to represent. See Otakpo V. Summonu (1987) 2 NWLR (Pt. 58) 587 at 623, para. B.
That since the reliefs being sought by the Claimants in the instant suit were accommodated in Suit No: NICN/LA/233/2012, and the cause of action is the same, the instant suit constitutes an abuse of court process. See Abubakar V. Bebeji Oil and Allied Products Limited 2007, All FWLR (Part 362) 1855 at 1887; Okorodudu V. Okoromadu 1977 NSCC Vol. 17 page 105, and Oyegbola V. Esso West African Inc 1966 1 ANLR 162.
Learned counsel listed some of the instances of abuse of court process to include:
a. Instituting a multiplicity of suits on the same subject matter against the same opponent on the same issues or multiplicity of actions on the same matter between the same parties even where there is an existing right to begin that action.
b. Instituting different actions between the same parties simultaneously in different courts even though on different grounds.
c. Splitting the reliefs that can be accommodated in a single suit into several reliefs and instituting several suits therefrom.
See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 paras E – H; Aduba V. Registered Trustees Living Christ Mission (1994) 4 NWLR (Pt. 339) 476 at 485 and Owonikoko V. Arowosaiye (1997) 10 NWLR (Pt. 523) 61 at 78.
The court is finally urged to dismiss the instant suit for constituting an abuse of court process in view of Appeal No: CA/PH/106/2010 and Suit No: NICN/LA/233/2012.
In opposition to the Application, the Claimants/Respondents filed 6 paragraphs Counter Affidavit deposed to by Damilola Badejo, a Litigation Clerk in the Law Firm of Messrs Salawu, Akingbolu & Co, the Solicitors to the Claimants on 5th February, 2018.
Annexed to the Counter Affidavit are documents marked as exhibits A, B, C, and D. The Claimants/Respondents also filed a Written Address dated 20th January, 2018 and filed on 5th February, 2018.
It is however instructive to note that at the hearing of this suit on the 11th day of March, 2019, the learned counsel to the Claimants/Respondents withdrew the written address filed on 5th February, 2018 which was struck out. Learned counsel then placed reliance on the Written Address dated 8th January, 2019 and filed on the 11th of January, 2019. Learned counsel for the Claimants/Respondents submitted a lone Issue for the determination of this court, to wit:
Whether the Claimants are estopped from instituting this suit against the Applicant in view of the facts that the earlier suit at the High Court of Justice Rivers State, Port Harcourt was withdrawn and struck out.
While arguing this sole Issue, learned counsel to the Claimants/Respondents submitted that, the contention of the 1st defendant/applicant that the Claimants cannot relitigate this suit in view of the decision of the Court of Appeal in Appeal No: CA/PH/106/2010 is misconceived because the issue of the Claimants’ employment status was not before the appellate court.
That from the facts and circumstances of this suit the Claimants are not estopped from instituting same.
Learned counsel listed the following as the features that must be established before a plea of estoppel per rem judicatam can succeed:
a. That the parties or their privies are the same in both the previous and the present proceedings.
b. That the claim or issues in disputes in both actions are the same.
c. That the res or the subject matter of the litigation in the two cases is the same.
d. That the decision relied upon to support the plea of estoppel per rem judicata is valid, subsist and final.
e. That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction.
See Makun & 6 Others V. Federal University of Technology Minna & 2 Others (2011) 6 – 7 S. C. (Pt. V) at 32.
While submitting on the above listed ingredients, learned counsel posited that, it is not only the parties that are not the same but also that the issues in the instant suit and Appeal No: CA/PH/106/2010 are not the same because the appeal was an interlocutory one relating to the propriety or otherwise of the mandatory injunction granted by the Rivers State High Court during the pendency of the suit at the said court. That for a plea of estoppel to be raised in an action, such issue must have gone through the trial process by calling evidence and the case heard on the merit. See U.T.C. Ltd V. Parmotei (1989) 2 NWLR (Pt. 103) 244; Oduyemi V. Agbede (2008) All FWLR (Pt. 412) 118, and Alhaji Oyede V. Olusesi (2005) All FWLR (Pt. 282) 1908.
Regarding the competence or jurisdiction of the court that gave the previous decision, learned counsel submitted that since no issue arose from the decision of the High Court to have been placed before the Court of Appeal for adjudication, the appellate court lacked the jurisdiction and competence to have decided the appeal relying on the cases of Ezekwesili V. Agbapuonwu (2003) 9 NWLR (Pt. 825) 340; ACB Ltd V. Ihekwoba (2003) 16 NWLR (Pt. 846) 240, and Mackson Ikeni V. Chief Williams (2001) 10 NWLR (Pt. 720).
I must state here that, I am at a lost on how counsel will argue and challenge the competence of the Court of Appeal to determine an interlocutory decision arising from a State High Court. Any challenge on the jurisdiction of the Court of Appeal can only be done before the Court of Appeal or a higher court, and certainly not before this court.
On the subsistence, validity and finality of the previous decision, it is submitted that, since the suit before the Rivers State High Court was withdrawn and struck out, all the interlocutory orders/decisions are no longer subsisting to have constituted an issue estoppel in the instant suit.
That the substantive suit having been struck out, the decision of the Court of Appeal cannot stand alone, because the decision of the Court of Appeal is not a final decision and no more in subsistence in the circumstances of this case. See Water Line Nig. Ltd V. Fawe Service Ltd (2003) FWLR (Pt. 163), and Pharmatex Industrial Project Ltd V. Trade Bank (Nig) Plc (2003) FWLR (Pt. 162) 192.
The court is finally urged to dismiss the application for want of merit.
It is instructive to note that, the 1st Defendant/Applicant filed a Reply on Points of Law dated 9th November, 2018, and filed on the 12th of November, 2018, wherein learned counsel to the 1st Defendant/Applicant responded to the issues raised by the Claimants/Respondents.
Regarding the parties, it is contended that, both Suit Nos: PHC/1559/2009 and NICN/LA/233/2012 were brought in a representative capacity for the named claimants and on behalf of other members of the spy police of the 1st Defendant. That since the claimants in this suit are also members of the 1st defendant's spy police they are parties to those two suits. See Otakpo V. Summonu (1987) 2 NWLR (Pt. 58) 587 at 623 para. B.
On the subject matter and the reliefs, it is argued that, while in Suit Nos. PHC/1559/2009 and NICN/LA/233/2012, the case of the Claimants is that being employees of the 1st Defendant they should be paid salaries, allowances, bonuses, subsidies and other entitlements paid to 1st Defendant’s junior staff, and that the 1st Defendant should be restrained from discriminating against them, those issues which have been laid to rest in Appeal No: CA/PH/106/2010, the Claimants in the instant suit are claiming that the failure of the 1st Defendant to pay them equal salaries, allowances, bonuses, subsidies and other entitlements with other junior staff in its employment is unfair labour practice and discriminatory , and that they are entitled to be paid their allowances and fringe benefits based on the 1st Defendant’s salary scale as paid to its junior staff.
It is further submitted that, contrary to the Claimants’ argument, the real test of determining whether or not a judgment is a final decision is not whether the judgment is an interlocutory judgment, but that a judgment of court is a final judgment if it disposes of the right of the parties.
That the decision in Appeal No: CA/PH/106/2010 is a final decision because it disposed of the issue of whether the claimants are the employees of the 1st Defendant thereby leaving the claimants with only an option of appealing against the decision.
It is finally argued that, the withdrawal and striking out of Suit No: PHC/1559/2009 cannot in law invalidate the decision of the Court of Appeal which had determined the status of the Claimants contrary to the contention of the Claimants. That unless and until the decision of the appellate court is set aside on appeal, same remains valid and subsisting. The court is therefore urged to discountenance the Claimants’ submissions and grant the Application.
The next Application to be considered is the 3rd Defendant’s Motion on Notice dated 15th November, 2017 and filed on 7th December, 2017, praying the court to strike out the name of the 3rd Defendant from the suit for being improperly joined in the suit.
The grounds for the application are as follows:
i. Lack of reasonable cause of action against the 3rd defendant.
ii. The 3rd defendant is not a necessary party.
iii. Improper joining of the 3rd defendant as a party.
The Application is supported by a 5 paragraphs affidavit deposed to by one Alinco Modu, the Litigation Clerk in the 3rd Defendant’s Legal Unit. In compliance with the Rules of court, the learned counsel to the 3rd Defendant filed a Written Address wherein this sole issue was crafted for the court’s determination, to wit: Whether 3rd Defendant was properly joined in this suit as a party.
It is submitted on the lone issue that, from the Complaint and Statement of Facts in this suit there is no relief or wrongful act of the 3rd defendant to occasion a cause of action to warrant joining the 3rd Defendant as a party in this suit. See Abubakar V. Bebeji Oil and Allied Products Ltd (2007) 147 LRCN 1091 at 1121 and NPA V. Lotus Plastics Ltd (2006) 12 LRCN 549 at 586.
That for a cause of action to arise there must be a wrongful act of a party which has injured or given the plaintiff a reason to complain in a court for remedy; and that such a wrongful act can only be ascertained from the averments in the Statement of Facts filed before the court. That the averments as contained in the Statement of Facts in the instant suit do not disclose any cause of action against the 3rd Defendant, hence this suit should be dismissed in limine. See Ladoke V. Olabiyi (1994) NWLR (Pt. 365) 734 at 744; Afolayan V. Ogunride (1990) 1 NWLR (Pt. 123) 369; Ogugimi V. Ololo (1993) 7 NWLR (Pt. 304) 125; O. K. Contact Point V. Progress Bank (1999) 5 NWLR (Pt. 604) 631 at 634 and Babayeju V. Ashamu (1998) 9 NWLR (Pt. 567) 546 at 555.
The court is therefore urged to strike out the name of the 3rd Defendant from the suit for want of cause of action and because the 3rd Defendant is not a necessary party to the suit.
In opposition to the 3rd Defendant’s Application, the Claimants filed a 5 paragraphs Counter-Affidavit deposed to by Damilola Badejo on the 5th of February, 2018. Filed along with the Counter-Affidavit is a Written Address wherein this sole issue was submitted for the court’s determination, to wit: Whether the 3rd Defendant should be joined as a necessary party in this suit.
While submitting on the issue, learned counsel to the Claimants/Respondents contended that, by the 3rd Defendant being the Accountant General of the Federation in whose custody the 1st Defendant was to pay the Claimants salaries, allowances and other fringe benefits into the Federation Account, the 3rd Defendant is a necessary party to the suit and in whose absence the issues in contention cannot be properly determined. See Lagos State Bulk Purchase Corporation V. Purification Techniques (Nig) Ltd. (2013) NWLR (Pt. 1352) 82, and Olawoye V. Jimoh (2013) 13 NWLR (Pt. 1371) at 362.
That the 3rd Defendant being the signatory to the Federation Account is in a better position to explain its role in the money remitted by the 1st Defendant with respect to the claimants’ salaries, allowances and other fringe benefits. The court is finally urged to dismiss the application because the 3rd Defendant is a necessary party to the suit.
May I state that, from the court’s records, the 3rd Defendant filed a 10 paragraphs Further Affidavit deposed to by Nnanna Ibom in response to the Claimants’ Counter-Affidavit on the 9th of February, 2018. Inexplicably, at the hearing of this application on the 11th day of March, 2019, the learned counsel to the 3rd Defendant did not refer the court to this process. The said process which was filed without a supporting Written Reply on Points of Law is deemed abandoned and hereby struck out.
Having considered the nature of the two (2) applications to be determined in this Ruling, I shall firstly determine the 3rd Defendant’s application which seeks the leave of court to strike out the 3rd defendant’s name from the suit for want of reasonable cause of action before determining the 1st Defendant’s application to dismiss the suit on grounds of res judicata and/or abuse of court process.
The law is trite and settled as rightly submitted by the learned counsel for the 3rd Defendant/Applicant that, for a suit to be maintained and sustained against a party, there must be disclosed reasonable cause of action against such a party the substance of which is a set of facts that can be proved to entitle a plaintiff to some reliefs for the injury caused. See Attorney General of the Federation and 2 Others V. Alhaji Atiku Abubakar and 3 Others (2007) 10 NWLR (Pt. 1041) 1at 121 – 122 paragraphs G – A. where the Supreme Court held as follows:
“It is settled law that there must exist a matter in actual controversy between parties to a suit in which the court of law is called upon to determine and that once there is no such live issue between the parties, a court will lack the jurisdiction to entertain the matter. In other words, there must exist a cause of action between the parties which term may be described as a civil right or obligation for the determination by a court of law or dispute in respect of which a court of law is entitled to invoke its judicial powers to determine. See Chief Afolayan v. Oba Ogunrinde (1990) 1 NWLR (Pt. 127) 369 at 371.”
It is equally a settled legal principle that in determining whether or not a case discloses any reasonable cause of action, the court will confine itself to the plaintiff’s Statement of Claim (in this case, the Claimants’ Statement of Facts) without any recourse to the Statement of Defence filed by the Defendant. See Union Bank of Nigeria Plc V. Romanus C. Umeoduagu (2004) LPELR – 3395 (SC). See also the case of Alhaja Morufa Disu (Otherwise known and called Mrs. Morufat Arikewuyo and 14 Others V. Alhaja Silifat Ajilowura (2000) LPELR-9888(CA), where the Court of Appeal per Suleiman Galadima, J.C.A. (as he then was), held as follows on what a court of law should do where a suit discloses no cause of action:
“For any statement of claim to be struck out for non-disclosure of a cause of action, care ought to be taken so that the party affected may not be deprived of his right to a plenary trial. It is only where pleading is obviously incontestably bad or is ex-facie unsustainable or where it is unarguable that it will be struck out. See Ibrahim V. Osim (1988) 3 NWLR (Pt. 82) 207; Mills V. Awoonor Renner (1940) 6 WACA 144.”
I have carefully considered the averments in the Statement of Facts filed on the 22nd of February, 2017, and it would seem that the Claimants are not certain as to the status of the 3rd Defendant in this suit. Paragraphs 4 and 5 of the Statement of Facts clearly misplaced the status of the 3rd and 4th Defendants in this suit. While the 3rd Defendant is the Accountant General of the Federation, paragraph 4 of the Statement of Facts described the 3rd Defendant as “the Commission responsible for the recruitment of police officers”. Paragraph 5 on the other hand described the 4th Defendant which is the Police Service Commission as “the Chief Accounting Officer of the Federation and in charge of the Federation Account.” Be that as it may, I take it that this is a mistake on the part of counsel which shall not affect the consideration of the instant application on its merit.
It is noted that, the only paragraph of the Statement of Facts where the name of the 3rd Defendant (Accountant General of the Federation) is mentioned is paragraph 5 where it is described as the Chief Accounting Officer of the Federation and in charge of the Federation Account and has its office at the Federal Secretariat Abuja Federal Capital Territory.
Nowhere again in the entire paragraphs of the Statement of Facts did the Claimants mention the name of the 3rd Defendant not to talk of raising any allegation against the 3rd Defendant to warrant or necessitate its joinder in this suit.
I have equally seen paragraphs 10, 11, 12 and 17 of the Statement of Facts wherein the Claimants averred that, having been employed by the 1st Defendant as spy police, the 1st Defendant was supposed to pay their salaries, allowances and other fringe benefits into the Federation Account, and that the 1st Defendant’s alleged failure to do so led to the denial of substantial portion of their salaries, allowances and other fringe benefits. Without any specific allegation of wrong doing against the 3rd Defendant I do not see how this case can ground a reasonable cause of action against the said 3rd Defendant. Merely pleading that certain monies were supposed to be paid into the Federation Account by the 1st Defendant which were not paid is not sufficient to burden the 3rd Defendant with litigation because it is neither responsible for the alleged payments nor is it pleaded that it is in custody of such monies.
A plaintiff who brings a Defendant to court (as in the instant case), must show in his Pleadings not just the wrongful acts of the Defendant but also the consequential damages suffered as a result of the said wrongful acts.
See Attorney General of Bayelsa State V. Attorney General of Rivers State (2006) LPELR – 615 (SC).
It is also observed that, none of the ten (10) reliefs being sought in this suit is against the 3rd Defendant. The law is that if no relief is claimed against a party, the proper order to make will be one striking out the name of such a party from the suit. See Mr. Kelvin Ihesiaba & Ors. V. Chief Mathew Ochepa (2015) LPELR-24822(CA).
I am therefore of the view that there is no cause of action established against the 3rd Defendant. The 3rd Defendant is clearly not a necessary party to the suit the Claimants having not raised any allegation against the 3rd Defendant and did not also claim any relief against the said 3rd Defendant. Consequently, the 3rd Defendant’s application succeeds and the name of the 3rd Defendant (The Accountant General of the Federation) is hereby struck out of this suit. I so find and hold.
I shall now consider the 1st Defendant’s Application challenging the jurisdiction of this court to entertain this suit on the grounds of the suit being res judicata and an abuse of court process.
I have carefully considered the processes, arguments and submissions as well as adumbrations of counsel on both sides, and the issue for determination in this application to my mind is whether the instant suit is caught by the principle of estoppel per rem judicata and also an abuse of court process in view of the decision of the Court of Appeal in Appeal No: CA/PH/106/2010 and Suit No:NICN/LA/233/2012 filed before the Lagos Division of this Court.
In determining this Issue, it is important to first and foremost consider what estoppel per rem judicata is, as well as the elements of the plea in order to ascertain whether from the facts and circumstances of this suit the said plea is applicable to the instant suit.
It is one of the cardinal principles of common law which has come to stay in our civil jurisprudence that public interest requires an end to litigation (interest reipublicae ut sit finis litium). It is therefore on this premise that the plea of estoppel per rem judicatam becomes an important plea in litigations whereby any cause of action that has been litigated upon and decided by a court of competent jurisdiction cannot be the subject of subsequent litigation between the same parties and subject matter. The plea forestalls protracted litigation in our courts of law.
In the case of Mojeed Suara Yusuf V. Madam Idiatu Adegoke & 1 Anor. (2007) 30 NSCQR (Part 1) 269 at 298 – 299 paragraphs H – C, the apex court per P. O. Aderemi, J.S.C. held as follows on the meaning of res judicata:
“Let me quickly make a pronouncement on the terms “RES JUDICATA”, it has now become well entrenched in our civil jurisprudence that once a dispute or matter has been finally and judicially pronounced upon or determined by a court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to relitigate such matter in court. A judicial decision properly handed down is conclusive until reversed by a superior court and its veracity is not open to a challenge nor can it be contradicted. The term derives its force from the good public policy which says that there must be an end to litigation. The maxim is INTEREST REIPUBLICAE UT SIT FINIS LITIUM.”
See also P. B. Olatunde & Co. (Nig.) Ltd. & 1 Anor. V. National Bank of Nigeria Ltd. (1995) 3 N.W.L.R. (Part 385) 550 at 562 para. B., and the decision of this court in the case of Tekeopuye Davis & 1 Or V. Oil Offshore Combination Ltd (Unreported) Suit No: NICN/YEN/136/2015, delivered on the 14th of March, 2018.
May I at this point reiterate the position of the law as rightly argued by both learned counsel that for a plea of res judicata to succeed it must be shown that not only the parties are the same but also the subject matter and the issues in the previous case must be the same with those in the instant case in which the plea is raised. The previous case must not only be conclusive but must have also made an order or granted a relief which is certain and capable of being enforced.
In the case of John Bankole & 3 Ors. V. Mojidi Pelu & 3 Ors. (1991) 8 N.W.L.R. (Part 211) 523 at 543 paras. A – B, the apex court put it succinctly thus:
“Did Exhibit J create an estoppel against the appellants in this case? It is trite law that to constitute estoppel against the appellants the parties in Exhibit J – Alimosho Customary Court Suit No. 47/69- and in the present action (Lagos High Court Suit No. IK/21/67) must be the same, the cause of action or issue in both actions must be the same and must have been litigated to finality vide Iyowuawi V. Iyowuawi (1987) 4 N.W.L.R. (Pt. 63) 61. “parties” in this context also include the “privies” vide Fadiora V. Gbadebo (supra); Bamishebi V. Faleye (1987) 2 N.W.L.R. (Pt. 54) 51; Udo V. Obot (1989) 1 N.W.L.R. (Pt. 95) 59 at 61.”
These conditions required for a successful plea of res judicata were reiterated by the Supreme Court in the case of Mr. Akinfela Frank Cole V. Mr. Adim Jibunoh & 2 Ors. (2016) 4 N.W.L.R. (Part 1503) 499 at 539 paras. A – D where the Supreme Court per Sanusi J.S.C. held as follows:
“Having analysed the similarity of the two suits, I am of the firm view, that this is a clear example of a case in which doctrine of res judicata applies. For purpose of clarity, for the defence of res judicata to be successfully raised, the following conditions must co-exist or be met, namely:
(1) That the parties in the previous action and the present one must be the same.
(2) That the subject matter of litigation in the previous action must be the same as the one in the present or new action.
(3) The claim in the previous action must be the same as the one in the present action.
(4) The judgment in the previous case must be given by a court of competent jurisdiction; and
(5) The decision must be final or it must have finally disposed of the rights of the parties.See Ihenacho Nwaneri V. Oriuwa & Ors (1959) 4 FSC 132 or (1959) SCNLR 316; William Ude & Ors V. Josiah Agu & Ors. (1961) All NLR 65, (1961) 1 SCNLR 98; Etiti Alh. Latifu Ajuwon & Ors. V. Madam Alimotu Adeoti (1990) 2 NWLR (Pt. 132) 271, (1990) 3 SC (III) 76.”
Having considered the conditions required for a successful plea of res judicata, may I state that the grouse of the 1st Defendant/Applicant is simply that since the Claimants’ instant suit is predicated on their claim that they were employees of the 1st Defendant, that issue had been allegedly resolved by the Court of Appeal, Port Harcourt Judicial Division in Appeal No. CA/PH/106/2010 hence they cannot raise the same issue in this suit.
The learned Claimants’ counsel O. K. Salawu Esq. has submitted that, the issue of whether the Claimants were employees of the 1st Defendant was never before the appellate court for adjudication because the decision of the appellate court was based on an interlocutory appeal on a mandatory injunction granted by the Rivers State High Court. That even if the parties in the previous suit are the same as those in the instant suit, the issues in the two suits are distinct and different.
I have gone through the decision of the Court of Appeal in Appeal No: CA/PH/106/2010 (exhibit ‘A’) annexed to the Application, and it is clear that same was against the interlocutory decision on mandatory injunction delivered by the Rivers State High Court of Justice on 24th March, 2010, Coram Hon. Justice E. N. Ogbuji in Suit No. PHC/1559/2009.
The Claimants had sought among other reliefs before the Rivers State High Court in Suit No: PHC/1559/2009, that they are not members of staff of the Nigeria Police Force, and being employees of the Defendant (Total E & P Nigeria Limited), they were entitled to the same salaries, emoluments and rights/protections as given to other junior employees of the Defendant not engaged in security services in line with the terms and conditions for junior staff as contained in the Management/NUPENG Negotiation of 2002.
In deciding the Interlocutory appeal, the appellate court per P. A. Galinje, JCA (as he then was and now JSC) stated thus at pages 12 – 13 of the Judgment regarding the status of the Respondents in the appeal:
“Section 2 of the Police Act, defines supernumerary police officer as a police officer appointed under section 18, 19 or 21 of this Act or under authorization given under section 20 of this Act. From the section of the Police Act which are referred to above, supernumerary police officers as the name goes are police officers whose appointment and discipline lie with the Police Force. The question for settlement here therefore is whether the Respondents were employed as supernumerary police officers.
By the statement of claim filed by the Respondents at the lower court on the 19/08/2009, the Respondents clearly admitted at paragraph 1 that they are supernumerary police officers engaged in the security service of the Appellant herein.”
His Lordship went further and stated thus on page 14 of the decision:
“From the provision of the Police Act, the appellant herein neither had power to appoint supernumerary police officers nor dismiss such officers from service. The appellant has every right just like any Nigerian to request for services of police officers, but that does not include the right to dismiss such officers.”
I have equally looked at the averments in the Claimants’ Pleadings as well as the reliefs in the instant suit and it is noted that despite the decision of the Court of Appeal on the employment status of the Claimants as having been employed and dismissed by the Nigerian Police Force, they still plead in paragraph 1 of the Statement of Facts in the instant suit that they were all employed by the 1st Defendant/Applicant as spy police. For the avoidance of doubt, paragraph 1 of the Statement of Facts is hereunder reproduced:
“The Claimants were all employed by the 1st defendant as spy police to protect its properties and environment. The Claimants shall at the trial rely on the various recruitment documents.”
More curious is the fact that even though the Police Service Commission is a party to this suit, the Nigerian Police Force that has been pronounced as the employer of the Claimants by the appellate court is still not made a party to this suit despite the admonition of the appellate court. The Claimants who throughout the averments in the pleadings referred to themselves as spy police were clearly supernumerary police officers because by their relief 3 they claim against the 1st Defendant the remuneration as directed by the Nigerian Police Force for Supernumerary police officers.
It is equally noted that, all the reliefs in this suit are against the 1st Defendant. They are claiming against the 1st Defendant amongst other reliefs the payment of unpaid salaries, allowances and fringe benefits as enjoyed by other employees of the 1st Defendant.
Having considered the averments in the Statement of Facts, I do not see how this suit can be decided without revisiting the employment status of the Claimants which has been decided upon by the Court of Appeal in exhibit ‘A’ annexed to the application. I do not have the powers to even contemplate reviewing the decision of the Court of Appeal. If the Nigerian Police Force that has been pronounced as the employer of the Claimants being a juristic personality is made a party to this suit and reliefs claimed against it, my position would have probably been different. But for the Claimants to still insist that they were employees of the 1st Defendant despite the appellate court’s pronouncement to the contrary, and urge me to proceed with the hearing of the matter is akin to asking a child to circumcise his father. The argument of the learned Claimants’ counsel that, the case at the Rivers State High Court which led to the Court of Appeal decision had been withdrawn, and that the appeal against the said decision to the Supreme Court had also been struck out to my mind is untenable because unless and until the Court of Appeal decision is set aside, it remains a binding decision on this court. Rooted in our judicial system is the principle of stares decisis. I am therefore bound by the pronouncement of the Court of Appeal which has not been set aside. May I state clearly that, this suit is not in any way a continuation of Suit No. PHC/1559/2009 because it is not a transferred matter from the Rivers State High Court to this court.
Rather than applying for the transfer of the suit to this court in view of the coming into effect of the 3rd Alteration Act, the suit was discontinued by the Claimants and consequently struck out by the Rivers State High Court.
Another point raised by the 1st Defendant/Applicant is that, since Suit No: NICN/LA/233/2012 had been filed before the Lagos Division of this Court, this instant suit constitutes an abuse of court process, and ought to be struck out. Exhibits ‘A’ and ‘B’ annexed to the application are the court processes in the said Suit No: NICN/LA/233/2012.
Having looked at the Complaint and Statement of Facts in Suit No: NICN/LA/233/12 (exhibit ‘A’ annexed to the Application), it is obvious that the 1st, 2nd, 4th, 5th, 6th, 7th, 9th, 10th, and 11th Claimants in the suit are the 69th, 4th, 1st, 9th, 13th, 7th, 42nd, 27th and 18th Claimants respectively in the instant suit.
In any case, the named Claimants in Suit No: NICN/LA/233/12 commenced the case in a representative capacity for themselves and on behalf of other members of the Spy Police of Total E & P Nigeria Ltd.
It is therefore my considered view that the Claimants herein being members of the Spy Police of the 1st Defendant were adequately represented by the named Claimants in Suit No: NICN/LA/233/12. There was therefore no need to have commenced this suit in 2017 in view of Suit No: NICN/LA/233/12 filed in 2012, particularly since the claims and reliefs in the two (2) suits are basically the same. In the case of Alhaji Tiamiyu Eleburuike V. Alhaji Rahim Akano Tawa (2010) LPELR-4098(CA) the Court of Appeal per Sotonye Denton-West J.C.A. defined “privy” as follows:
“The concise law dictionary (Sixth edition) page 264 defined privy as, “One who is a party to or had a share or interest in something.” While the blacks law dictionary (eight editions) defined a privy as- “a person having a legal interest of privity in any action, matter, or property, a person who is in privity with another-privies in law such as- the term also appears to the content of litigation, in this sense, it includes someone who controls a law suit though not a party to it, someone whose interests are represented by a party to the law suit.” In the case of Iyayi Vs. Eyigebe (1987) 7 SCNJ 148 at 152, privy was held to include all those who are privy to the parties in blood or title or interest, and estoppel per rem judicata operates for, or against, not only parties but also those privies.”
There is therefore no doubt that the instant suit constitutes an abuse of court process in view of the pendency of Suit No: NICN/LA/233/12 filed by the Claimants before the Lagos Division of this court.
Even though the Claimants indicated that the said Suit No: NICN/LA/233/12 has been struck out, there is nothing before the court to establish that. No order of court or even records of proceedings was exhibited to satisfy the court that the said suit has been struck out by the Lagos Division of this court. Courts do not act on conjectures/speculations but on proved or established facts.
In the final result, I hold that the 1st Defendant/Applicant’s Application challenging the jurisdiction of this court to entertain this suit succeeds. The appropriate order to make in the circumstance is to strike out the suit and same is hereby struck out.
I make no order as to costs.
Ruling is entered accordingly.
Hon. Justice P. I. Hamman