IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: June 25, 2019 Suit No: NICN/PHC/79/2018
1. Tekena Obrabiel Lawson
2. Felix Ejims Otto
3. Iteke Peri Thomas Applicants/Respondents
(For themselves and as representing 92 staff of
Rivers State Sustainable Development Agency)
1. The Attorney-General And Commissioner
For Justice, Rivers State Respondents/Applicants
2. Rivers State Sustainable Development
Isah Seidu with Adeze Owhor – Chukwu (Miss) for the Applicants/Respondents
A. Sibi, Chief State Counsel, Rivers State Ministry of Justice with N.K. Kobari (Mrs.) State Counsel, for the Respondents/Applicants.
1. On July 10, 2018 the Applicants sued the Respondents by Origination Summons for the following reliefs:
i. A Declaration that the Claimants (Staff of Rivers State Sustainable Development Agency) an agency that came into existence by the laws duly enacted by the Rivers State House of Assembly are Civil Servants in the employment of the Rivers State Government and their employment can only be determined in line with the Civil Service Rules and by no other means; that is, having attained the statutory retirement age of 65 years and/or having worked in the Civil Service of Rivers State Government for a continuous period of 35 years, whichever is earlier in time.
ii. A Declaration that the Claimants are entitled to their salaries, wages, pension, gratuity and emoluments from February 2015 till June 2018 and same still running until the determination of their respective employments in line with the Civil Service Rules.
iii. A declaration that it is tantamount to unfair labour practice for the Respondents to have refused, failed and/or neglected in paying the Claimants their accrued salaries, wages, emoluments for work done and/or even when their employment with the Rivers State Government still subsist.
iv. An Order of mandatory injunction restraining the Defendants and/or whosoever from further intimidating, illegally tempering with the employment of the Claimants until same is determined in line with the Civil Service Rules and no other means.
v. An Order of mandatory injunction compelling the Defendants to pay forthwith to the Claimants their salaries, wages and emoluments due and still running from February, 2015 till June, 2018 and same still running.
vi. An Order of mandatory injunction compelling the Defendants to remit the Claimants accrued pension and gratuity to their respective PFA’s.
vii. N500,000,000.00 (Five Hundred Million) Naira only being compensation for unfair labour practice by the Rivers State Government against the Claimants.
Other initiating processes were filed with the Originating Summons in line with Rules of this Court. In response, the Respondents entered conditional appearance.
2. On August 7, 2019 counsel to the Respondents filed a Notice of Preliminary Objection pursuant to Order 18 Rule 2(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 praying for an order of the court striking out and or dismissing the Applicants’ suit for want of jurisdiction. The notice is premised on these grounds:
i. That the claimants herein lack the locus Standi to commence this action:
ii. That the condition precedent to commencing representative action as contemplated by the Rules of the National Industrial Court, 2017 has not been met/satisfied.
iii. The interest elicited by the Applicants’ documents; particularly the exhibits thereof evince completely different interest by the Applicants.
iv. That the contract of employment by the claimants’ is personal to each of them, also the diverse interest elicited by the applicants herein cannot ground a representative action.
3. The notice is supported by a 9 paragraphed affidavit, deposed to by one Rita Tamuno, Human Resources Officer of Rivers State Sustainable Development Agency. The notice is also supported by a written address wherein counsel to respondents/applicants formulated issues for determination as follows:
a. Whether there is any ostensible authority of the parties sought to be represented by the Applicants before the court, to enable the entertainment of the purported representative action commenced by the Applicants herein?
b. Whether the single affidavit purportedly deposed to by one Tekena Obrabie Lawson, without an affidavit by any of the parties sought to be represented being sworn to convey or at least confirm the authority of the other Applicants is sufficient to elicit the needed consent to activate this representative action as brought by the applicants?
c. Whether the diverse interests of the parties as elicited by paragraphs 4, 6 and 7 of our affidavit in support vis – a – vis the fact that the contract of employment of the Applicant on record and the class they represent is personal to them can sustain the applicants’ representative action?
5. Arguing issue a, counsel referred the court to Adegbite Taiwo v. Serah Adegboro & ors  LPELR 3133 (pg.14 paragraph E) and he submitted that there is no ostensible authority before the court showing anybody authorizing the applicants herein to commence this suit on their behalf. To counsel, the practice over the years has made the requirement of consent of the persons represented to commence a representative action sine qua none; citing Order 11 Rule 5 the National Industrial Court of Nigeria, 2017 that the word “May” is interpreted to mean ‘mandatory’ rather than ‘directory’; citing Adesola v. Abidoye  14 NWLR (Pt. 637) 28 @ 56.
6. Arguing issue b, counsel submitted that there is no Consent/mandate of the persons represented as authorizing them to represent them in this suit and the same is not sufficient to ground a representative action. Further still, the meeting attendance sheet of Rivers State Sustainable Development Staff before the Court does not elicit any consent whatsoever. To counsel, the practice is that in compliance with Order 11 Rule 5 thereof, upon the issuance of the Originating Summons and before hearing of the said summons and before objection is taken, the party appearing in a representative capacity, first applies to the court for an order to appear as Such by a motion supported with an affidavit. There should normally be 2(two) affidavits, one by the party himself and the other by any of the persons represented; deposing to an affidavit that they gave authority to their representative to represent them, thereby reinforcing the deposition to the same effect by the representative on record. It is these affidavits that will Furnish the evidence of the authority to represent the persons represented citing Akonde v. Araoye & Another  1 All NLR, 214.
7. Arguing issue c, counsel maintained that the people represented in this group do not belong to a single class, but to several strata of employees with completely different interests that would certainly result in different claims. He went on that their constitution in this suit defies the principles and rules of parties in a representative action. Furthermore, their respective contracts of employment are also personal to each of them, citing Order 11 Rule 1 and 5 of the Rules of Court and to C. C. B. (Nig.) Plc. v. Rose  4 NWLR (Pt. 544) 37 @ 40 ratio 3.
8. Responding to the preliminary objection, counsel to the applicants/respondents did not file counter affidavit but filed only a written address where he formulated these issues for determination:
i. Whether the Defendants/Applicants have the requisite standing to challenge the representative capacity as endorsed on the Originating Processes, in which the Respondents commenced the instant suit.
ii. Whether the Respondents require prior leave of the Honourable Court before commencing the instant suit in a representative capacity.
iii. Whether the instant suit as presently constituted is competent and maintainable in law.
9. Arguing issue one, counsel submitted that the Applicants lack the requisite vires in law to challenge the representative capacity in which the Respondents commenced this suit. He went on that the defendants cannot challenge the capacity of the plaintiffs/respondents to sue in a representative capacity, citing EIF Pet. (Nig.) Ltd v. Umah  10 NWLR (Pt.1628) pg. 428 at 453 paragraphs D-H.
Arguing issue two of whether the Respondents require prior leave of the Court before commencing the instant suit in a representative capacity; counsel submitted that the Respondents do not require prior leave of the court to commence the instant suit in a representative capacity, citing Adamu & Ors v. Nig. Security Printing & Minting  NLLR (Pt.159) pg. 729 at 750 paragraphs G-B where the Court held inter alia that section 14 of the National Industrial Court Act, 2006 enables the National Industrial Court to entertain representative suit. He went on that the Court in construing the extant provision of Order 4 Rule 2 of the National Industrial Court Rules, 2007 held that by Order 4 Rule 2 of the National Industrial Court Rules, 2007 representative suit can be commenced without the necessity of having to first obtain leave of Court, citing pages 748 -749 of Adamu & Ors v. Nig. Security Printing & Minting (supra); Esther & Ors. v. Skye Bank Plc.  26 NLLR (Pt.74) pg. 303 at 323-324 paragraphs F-A & 325 paragraphs C-E; section 14 of the National Industrial Court Act, 2006 and Jack v. Whyte  NWLR (Pt.709) pg. 266 at 275. He continued that the Court held that it is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of Court before filing his suit. To counsel, the attitude the courts adopt in matters of this nature is not a rigid one. It depends on the facts and the circumstances of the case and that if there is evidence that the parties appear to possess representative capacity and act or presumably act on the authority of those they represent. This court does not and will not upset on a bare objection of failure to obtain the approval of the court. To counsel, a representative is a person authorized formerly or informally to act or speak for another or others, citing Nikagbatse v. Opuye  14 NWLR (Pt.1213) pg. 50 at 101 paras B-D.
10. Arguing issue three of whether the instant suit is competent and maintainable in law, counsel submitted that the rule permitting joinder of causes applies where, if such persons were to bring separate actions, a common question of law or fact will arise. He continued that joinder of causes of action is designed to prevent multiplicity of actions and thus save the parties unnecessary costs, citing the Akinsanya v. Coca-Cola Nig. Ltd  28 NLLR (Pt.79) pg. 7 at 191, paras D-E; Ukpong v. Comm. For Finance  19 NWLR (Pt. 1013) 187. Counsel went on that the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 allows the institution of a suit by joint or several Claimants in one action, citing Order 13 Rule 1 of the said Rules; S.P.D. C.N Ltd. v. Oruambo  5 NWLR (Pt. 1294) 591@ 601 Paragraphs C- H, 611, Paragraphs D-E, 612, Paragraphs B- C; Abdulralheem v. Oduleye  8 NWLR (Pt. 926) 144 @ 167 Paragraphs C-H and Ayankoya v. Olukoya  4 NWLR (Pt. 440) 1 @ 31, Paragraphs A-C.
Furthermore, he contended that the instant action cannot; therefore, be said to constitute an abuse of judicial/court process by any stretch of imagination, in the light of the stipulation in Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the judicial support in the case of N.E.L.M Ltd v. Omotusi (supra) as well as the Supreme Court decisions cited and relied upon by the Claimants/Respondents. Counsel finally urged the court to dismiss the instant Notice of Preliminary Objection in its entirety with substantial cost of N5,000,000.00 (Five Million Naira) against the Defendant/Applicant and/or Counsel.
I have gone through the facts of this case as pleaded and as endorsed on the complaint; from all of these, I am of the considered view that the following issues are to be resolved in this application between the parties:
i. Whether or not the Defendants/Applicants have requisite standing to challenge the representative capacity of the applicants/respondents.
ii. Whether or not the applicants/respondents need prior leave of this Court to commence this action in a representative capacity or they have met the condition precedent before filing the suit.
1. However, before going into the merit of this application, I hereby admonish counsel appearing in this Court to always refer to the party they are representing with the party’s proper title. For instance, this instant case was initiated by Originating Summons, yet; both counsel still referred to the parties as claimants and defendants in the issues they framed on this application and in their arguments, instead of referring to them as applicants and respondents respectively. This is not right and it is in fact confusing. I hope counsel take note of this please.
12.On whether the respondents/applicants have requisite standing to challenge the representative capacity of the applicants/respondents.
It is trite law that Court’s Jurisdiction on any case is a very fundamental issue. And as a threshold issue, it should be determined at the earliest stage of the proceedings as soon as it is raised. This is because, if a court has no jurisdiction to hear and determine the case, its proceedings on that case remain a nullity ab initio, no matter how well conducted and decided. See the cases of Anyanwu v. Ogunewe  8 NWLR (Pt. 1410) SC 437 at 476 paragraphs G-H and UBA Plc. v. J.M & Co. (Nig.) Ltd.  5 NWLR (Pt. 1504) 171 at 180 paragraph A.
13. The Notice of Preliminary Objection of the respondents/applicants, filed on the August 7, 2018 is at page 777 of the record. In it, they are inter alia challenging the capacity of the applicants/respondents to institute this action in a representative capacity. In their “paragraph 2 under, Argument on Issue A” at page 782 of the record; their counsel submitted that ‘practice over the years has made the requirement of consent of the persons being represented to commence a representative action sine qua none’. He referred the Court to Order 11 Rule 5 of the Rules of the National Industrial court of Nigeria, 2017 and quoted this rule this way:
On an application for declaration or injunction, the court may appoint one or more persons to represent any class or group of persons who –
a. May be commonly interested in any matter; or
b. Are commonly affected or likely affected by any act or action of any person or authority, where such class or group of persons may not be easily ascertainable or conveniently found, if satisfied that is expedient to do so.
14. However, the provisions of Order 11 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is on ‘Entitlement of the Deceased Employee (Intestate)’ while its Rule 5 is on ‘Proof of custom and practice’. This means that the said cited Order & Rule of the Court has no bearing with what counsel to the respondents/applicants quoted and wanted the Court to base its Ruling on. This is very sad and it shows lack of diligence on the part of counsel. It is also my considered opinion that this is a deliberate attempt by counsel to mislead this Court; which is very unfortunate.
Furthermore, counsel cited the case of Adesola v. Abidoye  14 NWLR, (Pt. 637)28 @56 to support this same argument at the same page 782 of the record. In that case, the Supreme Court held on the word “may” used in section 22(5) of the Chiefs Law of Oyo State this way:
The use of the expression “may” in this situation is not merely facultative but
Mandatory. There is no alternative. The aggrieved has no choice of an action in the Remedy provided for him. Accordingly, the word “may” used in section 22(5) of the Chiefs Law of Oyo State 1978 should be construed as imperative, the exercise of the right being not optional.
On the other hand, in paragraphs 3.1 to 3.3 of his response to this application at page 795 to page 797 of the record, counsel to the applicants/respondents opposed the right of the respondents/applicants to challenge the capacity of the applicants/respondents to initiate this case in a representative capacity; he referred the Court to the case of Eif Pet (Nig.) Ltd v. Umah  10 NWLR (Pt. 1628) 428 at 453 in support of this argument and urged the Court to so hold.
15. The respondents/applicants have not shown the Court from their affidavit evidence in support of this application that they belong to the group of people that the applicants/respondents are purporting to represent but without the consent of those people. They have not also shown that they have something to lose by the applicants’/respondents’ representation of the group of people in question; neither have they shown that the applicants/respondents and the people they are representing do not have common interest and common grievance. Again, the respondents/applicants have not shown that the reliefs being sought for are not beneficial to all those in the group being represented by the applicants/respondents. These are case-law conditions under, which the respondents/applicants are allowed to challenge the representative capacity of the applicants/respondents. See the following cases: Alafia & Orsv v. Gbode Ventures Nigeria Ltd & Ors  LPELR-26065(SC); Bwari v. Oseni  4 NWLR (Pt. 237) 557 @ 582: Dise v. Williams  1 NWLR (Pt.370) 142 and Adefulu v. Oyesile & Ors.  5 NWLR (Pt.122) 377" Per Kekere-Ekun, JSC. (P. 46, Paragraphs A-C).
16. For instance, in the case of SPDC Nigeria Ltd. v. Edamkue & Ors.  LPELR-3048(SC):  14 NWLR (Pt. 1160) 1 SC; the Supreme Court held that “it is only a member of that group, family or Community, who can dispute, intervene or challenge, the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile for a defendant who is not one of those the plaintiff/plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect the defendant adversely. ---”. And in Salisu & Ors. v. Odumade & Anor.  LPELR-2995(SC):  6 NWLR (Pt.1190) 228 SC; the Supreme Court held that "it is now firmly settled that even the failure to obtain leave to sue in a representative capacity, does not vitiate the validity of the action---”. Consequently, I hold that the right to challenge the representative capacity of the applicants/respondents in initiating this action does not lie with the respondents/applicants. In other words, I hold that the respondents/applicants lack locus standi to challenge the representative capacity of the applicants/respondents as they did in this application.
17.On whether the applicants/respondents need prior leave of this Court to commence their representative action or they have met the required condition.
Case law position on representative action is that the claimant or applicant has a burden to show that all the members of the group so represented have a common interest and common grievance. In other words, where there are numerous persons having the same interest in one cause or matter, one or more of the people can sue on behalf of the others. Where, however, they do not have a common interest, then; the plaintiff/claimant/applicant cannot sue on their behalf. See Supreme Court’s decisions in Alafia v. Gbode Ventures (Nig.) Ltd  7 NWLR (Pt. 1510) 116 at 152 para E-F per Okoro JSC and Okwu v. Umeh  4 NWLR (Pt. 1501) 120 at 146 para B:  All FWLR (Pt. 825) 232 at 251 para C Per Okoro JSC.
18. In support of their Originating Summons before the Court, the applicants/respondents filed a 10 paragraphed Affidavit deposed to by the 1st applicant/respondent. It is indicated under the names of the applicants/respondents that they sue for themselves and as representative of the 92 staff of the Rivers State Sustainable Development Agency. In paragraph 2 of the affidavit in support of this Originating Summons, the deponent avers that he has the mandate, consent and authority of the other applicants to make this deposition on their behalf. And in paragraphs 7, 8 and 9 of the affidavit in support of the Originating Summons, the deponent deposed that their employment is governed by the Civil Service Rules and so, can only be determined by the same Rules. To them, it is an unfair labour practice for the respondents/applicants to refuse, neglect and/or fail to pay their accrued salaries, wages and emoluments from February 2015 till date, despite the status of their employment. This is the common interest and common grievance of the applicants /respondents in this case and if this relief is granted, it will be beneficial to all the applicants/respondents represented in this suit. In the circumstance, I find and hold that by the applicants/respondents’ depositions in paragraphs 2, 7, 8 and 9 of the affidavits in support of this Originating Summons, they have common interest and common grievance. I further hold that if the reliefs sought for are granted, they will be beneficial to all the people that the applicants/respondents are representing in this case. Consequently, I hold that the applicants/respondents have met the case law requirement in Alafia & Ors v. Gbode Ventures Nigeria Ltd & Ors [supra].
19.On the effect of failure to obtain leave of this court to sue in representative capacity
It is now firmly settled by case law that, failure to obtain leave of Court to sue in a representative capacity does not vitiate the validity of the action. See Mbanefo v. Molokwu  6 NWLR (Pt. 1403) 377 at 411 paragraphs G-H and Salisu & Ors. v. Odumade & Anor  LPELR-2995(SC):  6 NWLR (Pt.1190) 228 S.C.
What's more, Order 4 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides thus:
Where a claimant sues, or a defendant or any of several defendants is sued in a representative capacity, the originating process shall state that the suit is brought in that capacity.
20. This provision in the reproduced rule above is impari Material with the provisions of Order 4 Rule 2 of the National Industrial Court Rules, 2007. The position of this Court on this Rule is that, once the representative capacity of the parties is reflected on the name of the party/parties; the provision of this Rule is satisfied. Consequently, I hold that the applicants/respondents have satisfied the requirement of Order 4 Rule 2 of the NICN (Civil Procedure) Rules, 2017 by stating under the names of the applicants/respondents that they are suing “for themselves and as representing 92 staff of Rivers State Sustainable Development Agency”. I further hold that this Preliminary Objection lacks merit and it is frivolous and it is hereby dismissed. The respondents/applicants are to pay N100,000.00 cost to the applicants/respondents.
Ruling is entered accordingly.
Hon. Justice F. I. Kola-Olalere