IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: MONDAY 13TH JULY, 2020
Suit No: NICN/YEN/53/2019
1. MR. IWOALABO SINCLEAR
3. OBODO EBIKIENMO
4. DORA ORUGBANI
1. Government of Bayelsa State
2. Attorney General of Bayelsa State
Nembe Local Government Universal
Basic Education Authority
4. Nembe Local Government Council
5. Bayelsa State Universal Basic Education Board
Mr. Gideon Rogers Elebe Esq for the Claimants/Respondents.
Mr. C.J. Ayankpele Esq (State Counsel) for the 1st, 2nd and 4th Defendants/Applicants.
This ruling emanated as a result of Notice of Preliminary Objection dated 3rd December, 2019 and filed on the same date by the 1st, 2nd, 4th and 5th Defendants. The application is seeking for an order of this court striking out or dismissing this suit for lack of jurisdiction. And the grounds for the application are as follows:
a. That Claimants’ contract of employment is personal to each and every one of them.
b. In the realm of master and servant relationship, the contract of employment is distinct to each individual.
c. The Claimants cannot therefore commence this action in a representative capacity.
d. The suit as commenced and expressed on the face of the complaint is incompetent, thus the court lacks jurisdiction to hear same.
In his submission learned counsel to the Applicants formulated two issues for determination and further submits that the contract of employment between the Claimants and the Defendants are personal to each of the Claimants and not collective. Therefore, a collective suit and or representative action as in the instant case cannot be instituted. Counsel cited the case of Hyson (Nig) Ltd vrs Augustine N. Ijeoma & 12 Ors (2008) 11 NWLR (Pt. 1097) pg 1 and C.C.B vrs Rose (1998) 4 NWLR (pt. 544) pg 37 ratio 6.
In conclusion counsel urged this court to dismiss and or strike out the entire action of the Claimants for being incompetent which inevitably touches on the jurisdiction of this Honourable court to hear and determine this suit.
The Claimants/Respondents filed their reply on the 10th December, 2019 where they raised three issues for determination. In their reply counsel to the Respondents submits that the current position of the law is that a representative action would be most appropriate (like in this case) when many people who have a common right and interest intends to sue in an action involving their right and that it would be difficult and most frustrating and a waste of judicial time to file several suits when one suit by representative action would suffice. Counsel further stated that once the parties can show that:
a. There are numerous persons interested in the case of the side to be represented.
b. All those interested must have some grievance.
c. The proposed representative must be one of them.
d. The relief or reliefs sought must in its nature be beneficial to all the persons represented. Counsel refers to the case of Durbar Hotel Plc vrs Ityough & Ors (2016) LPELR – 42560 (SC) (Pp 8 – 19, Para D – A) Per Rhodes Vivour Jsc.
Counsel further submits that this court should distinguish between this case and the cases of C.C.B. vrs Rose (supra) and Hyson (Nig) Ltd vrs Augustine N. Ijeoma & 12 Ors (supra) cited by the learned counsel to the Applicant.
In conclusion, counsel urged this court to dismiss the Preliminary Objection and hold that this court has the jurisdictional vires to entertain this matter moreso that the Applicants have alluded to specific facts suggesting that the Claimants respective contract of employment is personal to each of the Claimants from their respective employment contracts but failed to deposed these deluded facts in an affidavit evidence since the address of a counsel cannot take the place of evidence. The 3rd Defendant has not filed any response to this application.
I have carefully perused at all the processes filed before this court and I have painstakingly read through the arguments canvassed by the Learned counsel to the 1st, 2nd, 4th and 5th Defendants/Applicants on their Preliminary Objections and the response filed by the Claimants/Respondents. The grounds raised by counsel to the Defendants/Applicants touches on the very foundation of the court’s powers to hear and determine the suit. The law is settled on the relevance of jurisdiction and the need to ascertain the presence or absence of it when challenged, before delving into the substance of the suit.
In other words, the court is called upon to drop its armour, retreat and satisfy that it is sufficiently clothed with the powers to determine the suit. This court is truly not an errand knight looking for jurisdiction where no one has activated it.
The gamut of the Preliminary Objection as filed by the applicants simply is that, this court lacks the jurisdictional vires to entertain this suit on the ground that the respective contract of employment which constitute the joint action in this suit is individual and personal to each of the Claimants on record hence; they cannot institute or maintain a joint or representative action over the payment of full salary arrears resulting from the performance or non performance of their respective individual contract of employment. In other words, this suit constitutes misjoinder of causes of action.
In other to effectively determine this application I formulated a lone issue for determination as follows:
“Whether this suit as constituted amounts to misjoinder of parties and causes of action thereby robed this court with the jurisdictional vires to entertain this suit.”
A cause of action is constituted by a bundle of facts which the law will recognize as giving the plaintiff or claimant a right of action. It is a situation or state of facts which would entitle a party to sustain action and give him right to seek judicial remedyor redress. It consists of every fact that would be necessary for the plaintiff or claimant to prove, if traversed, in order to support his right to the judgment of the court. Such facts or combination of fact, which give rise to a right to sue may consist of two elements:
a. The wrongful act of the Defendant which gives the Plaintiff or Claimant his cause of action; and
b. The consequential damage.
See Anukwu vrs Eze (2012) 11 NWLR (pt. 1310) pg 50; Akibu vrs Oduntan (2000) 13 NWLR (pt. 685) 446; Akilu vrs Fahwemi (No.2) (1989) 2 NWLR (pt. 102) at pg 122.
Having said all these, as distilled from the Complaint and the Statement of Facts, the Claimants instituted this action in a representative action against the Defendants challenging the action of the Defendants by short listing the names of the Claimants in the uncleared verification list and also claiming payment of arrears of salaries from January 2018 to date. See paragraphs 1, 3, 5, 6, 8, 12 and 14 of the Statement of Facts.
Furthermore, by paragraphs 1, 3, 5, 6, 8, 12 and 14 of the Statement of Facts the Claimants averred that they were all employed as Academic and Non Academic Staff of the 3rd Defendant in Nembe Local Government Area of Bayelsa State though on different dates and on different grade level or rank. It is the contention of the learned counsel to the Applicants that the Claimants having been employed at different times and dates they cannot jointly institute this action against the Defendants in a representative capacity as doing that will amount to misjoinder of parties and cause of action. At this stage its important for me to look at the rules of this court as it pertains to joinder of parties and causes of action. Order 13 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 states:
“All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant(s) as may be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment.”
From the provisions of this rule, all persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally. And from the Complaint and the Statement of Facts one can see that the Claimants are having the same right and a common relief against the Defendants, which is challenging the exclusion of their respective names from the salary voucher and also payment of arrears of salary which occurred in January, 2018. The provisions of Order 13 Rule 1 of the Rules of this court as cited above is very clear and unambiguous. And its trite that where the words of a statute are plain and unambiguous, they must be given their plain meaning unless it will lead to absurdity. See Nyame vrs FRN (2010) 17 NWLR (pt. 1193) pg 344 @ 399 para B – H Per Adekeye J.S.C.
The Claimants were employed under the same terms and condition of service as employees of the 3rd Defendant and their claims are based on the same cause of action with common remedies. See paragraphs 1, 3, 5, 6, 8, 12 and 14 of the Statement of Facts. The argument canvassed by the Learned counsel to the Applicants that the contract of employment between the Claimants and the Defendants are personal to them and not collective hence, a common suit as this one can not be instituted is a total misconception of the law. Also, the authority of Hyson (Nigeria) Limited vrs Augustine N. Ijeoma & 12 Ors (Supra) and C.C.B (Nig)Plc vrs Rose (supra) cited by the counsel to the Applicant is distinguishable from the case at hand. This is because in HYSON’s case the Respondents were employed separately and at different times, under different terms and conditions of service and their claims against the Appellant were based on different cause of action with different supporting documents. But under these circumstances the cause of action is the same. The reliefs sought are the same and the condition of service is the same.
Furthermore, the court in the case of F.G.N vrs Shobu Ltd (2014) 4 NWLR (pt. 1396) at 63 paras C – G held as follows:
“It is trite and a common principle of law that a misjoinder or non- joinder of a party cannot defeat a cause or matter. A misjoinder or non joinder(whatever the case may be) of a party will not be fatal to the proceedings. The court could deal with the matter in controversy regarding the rights and interests of the parties with the proper parties before it.”
See also Ngige vrs Akunyili (2012) 15 NWLR (PT. 1323) 343; F.U.T Yola vrs A.S.U.U (2013) 1 NWLR (pt. 249) (CA).
Assuming all the Claimants initially instituted separate actions against the Defendants, by the provisions of Order 17 Rules (1), (22), (23) of the Rules of this court this court may suo motu order that consolidation of cases be made.
In view of the foregoing facts I enumerated ab-initio, I resolved the lone issue for determination in favour of the Claimants/Respondents and hold that having regards to the entire circumstances and facts of this case, this suit is competent and this court has the jurisdictional vires to adjudicate on this matter. The Preliminary Objection is hereby dismissed. I declined to award any cost.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI
NATIONAL INDUSTRIAL COURT OF NIGERIA