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OGUNGWA & ORS v. WILLIAMS & ANOR (2019) LPELR-47536(CA)
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar
ON TUESDAY, 21ST MAY, 2019
Suit No: CA/C/251/2012
Before Their Lordships:
MOJEED ADEKUNLE OWOADE, JCA
YARGATA BYENCHIT NIMPAR, JCA
MUHAMMED LAWAL SHUAIBU, JCA
Between
1. MR. EYO MOSES OGUNGWA
2. MR. OKON EDET ETTA
3. MR. EWA HENSHAW
4. MR. NSA EFFANGA ITA – Appellant
(For themselves and on behalf of 117 former staff of
Eastern Match Industries Ltd and members of
National Union of Chemicals, Footwear Rubber
Leather and non-metallic Products Employees)
And
1. MR. OLUROTIMI WILLIAMS
(Receiver of Eastern Match Industries Ltd) – Respondent
2. SHANET WATCH INDUSTRIES LTD
LEAD JUDGMENT DELIVERED BY MUHAMMED LAWAL SHUAIBU, J.C.A.
FACTS OF THE CASE
The appellants herein are former staff of the Eastern Match Industries Limited and members of the National Union of Chemicals Footwear, Rubber, Leather and Non-Metallic Product Union.
The 1st respondent is a Lagos based legal practitioner who was appointed the receiver of Eastern Match Industries Ltd by Afribank Nigeria Plc. pursuant to the powers conferred on the Bank by a Deed of Mortgage Debenture dated 15/11/96 executed by the company in favour of International Bank for West Africa (IBWA) the predecessor of Afribank Nigeria Plc.
The 2nd respondent is a match producing company that purchased the defunct Eastern Match Industries Ltd. from the 1st respondent. On 11/7/2002, the appellants were notified of the appointment of the 1st respondent as Receiver of Eastern Match Industries Ltd. and that arrangement was being made for payment of their outstanding entitlements.
When the said entitlements were not paid, the appellants as plaintiffs, instituted suit No. HC/512/2002 at the High Court, Calabar, Cross River State claiming against the defendants (now respondents) jointly and severally as follows:-1.
A declaration that the plaintiffs are entitled to be paid their outstanding salaries economic relief package (Adhoc), Annual leave grants, a leave days grants, housing allowances, transport allowances, gratuities and other end of service or disengagement benefits as provided for in their terms and condition of employment.
2. An order, directing the defendants to forthwith pay to the plaintiffs the sum of N25,089,339.62 only being their outstanding salaries allowances, gratuities and other entitlements due to the plaintiffs upon the termination of their contract of employment with Eastern Match Industries Limited.
After settlement and exchange of pleadings, the matter proceeded to trial. However, when the matter came up on the 12/10/2009, learned trial judge based on what he described as “the interest of fairness and justice”, formulated six issues and asked parties to file further or additional address in that regard.
Consequently, parties readopted their written address and in a reserved and considered judgment delivered on 20th April, 2011, learned trial Judge held that the claimants’ case was tantamount to a misjoinder of parties and cause of action and thus entered judgment of non-suit with N1,000 cost to each defendant. Being dissatisfied with the judgment, appellants appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Appellant formulated five issues for the determination of the appeal. The Court after carefully and meticulously considering the submissions of learned counsel on both sides observed that the five issues are intertwine and interrelated with one another. The Court was of the view that a resolution of the first issue will inevitably determine the remaining four issues.
The main fuss of the appellants is that inspite of the subsisting order of a Court for joinder, the learned trial judge had suo motu, without asking for input from the parties non-suit their case and thereby causing miscarriage of justice to them.
APPELLANT’S COUNSEL SUBMISSIONS
Learned counsel for the appellants referred to Order 4 Rule 2 now Order 16 Rules 1 and 5 of the High Court (Civil Procedure) Rules of Cross River State which permits the joinder of parties and cause of action and contended that vide a motion filed on 16/10/2002, the appellants had sought and obtained leave to represent all the 117 former staff of the defunct Eastern Match Industries Ltd., who were also former members of the National Union of Chemicals, Footwear, Rubber, Leather and Non-Metallic Products Employees. He submitted that where more than one person have the same interest in one suit, one or more may be authorized by other persons interested to sue in such suits for the benefit of or on behalf of all parties so interested.
Arguing further, learned counsel for the appellants submitted that an order of non-suit which is tantamount to the termination of a suit prematurely without determining all the issues on merit was not the appropriate order in the circumstances of this case.
He referred to Order 16 Rule 6 of the High Court (Civil Procedure) Rules of Cross River State to contend that an order of non-suit can only be made where the trial in such a suit will be embarrassing to the parties, inconveniencing and delayed. Therefore, the remedy in this case was not to non-suit the appellants but to order separate trials. He referred to OLUSOLA V TRUST HOUSE PROPT. LTD (2010) 8 NWLR (pt 1795)1 at 4 – 6. He further submitted that before the Court can order nonsuit, it has the mandatory duty to accord parties the opportunity to address it on the propriety or otherwise of such an order which was not done in this case.
RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 2nd respondent contended that the relevant rules of Court deals with joinder of causes of action by persons claiming jointly against a defendant.
Thus it envisages that the claimants have joint interest to present a joint claim and may in addition add such other claims they have separately against the defendant. He however submitted that the said rules being cited and relied upon by the appellants only deals with joinder of causes of action but not joinder of plaintiffs. Thus, the purported leave granted by the Court does not avail the appellants as the 117 workers are not joint plaintiffs and that their names are not endorsed on the Writ of Summons.
Learned counsel for the respondent conceeded that in making the order of non-suit in this case, the learned trial judge did not afford the parties the opportunity to address him on the propriety or otherwise but he was quick to submit that the failure was rather beneficial to the appellants who woefully failed to prove their case and thus giving them yet another opportunity.
RESOLUTION OF ISSUES
In determining the appeal, the Court found that the main contention here is whether the 117 former staff of the Defunct Eastern Match Industry Ltd have common interest and grievance and therefore can maintain a representative action against the respondents through the appellants.
The Court held that the jurisprudential postulate underlying suits in representative capacities is that the person or persons suing or depending in a representative capacity must have the same interest in the proceeding. This means that parties on record and those they represent must have common interest. The Court stated the conditions or ingredients that must exist for an action to lie in a representative capacity, as follows:
(a) There must be a common interest;
(b) There must be a common grievance and;
(c) The relief claimed must be beneficial to all.
From the facts of the case, the Court found that it is clear that the appellants and those they purports to represent are pursuing interest that is personal or domestic to each person.
The Court found further that in the realm of master and servant relationship, although ten or thousand persons are given employment the same day under same conditions of service such contract of employment is personal or domestic to each of the persons. And in the event of breach, the persons do not have collective right to sue or be represented in a suit. See C.C.B (NIG) PLC V ROSE (1998) 4 NWLR (pt 544) 37 at 50.
The Court held that similarity of interest would not be sufficient in the absence of a commonality of interest. In the instant case, the appellants and others on whose behalf they claimed in representative capacity had varied, and diverse domestic interest.
On the issue of misjoinder of parties, the Court held that where there is a misjoinder of parties and cause of action, the proper order for the Court to make where the matter has been heard to conclusion would be non-suit. But where the case has not been heard on the merit, the proper order would be to set aside the claim by striking out the suit where the claim is not amendable. See C.C.B. (NIG) PLC. V ROSE (Supra) at page 46 and CHIKERE V OKEGBE (2000) 12 NWLR (pt. 681) 274.
The Court further held that it is however mandatory for the Court to hear parties on the propriety of an order of non-suit before making it. Parties in this case are ad idem that the order of non-suit was made by the learned trial judge without affording parties the opportunity to address him on it. The Court held that a Court is not allowed to raise an issue suo motu and decide it without affording the parties an opportunity to be heard. This is because in doing so, the Court is seen to leave its exalted position as an arbiter and descend into the arena of conflict.
The Court held that it is obligatory for trial Court and intermediate Courts to pronounce on all issues placed before them for determination. The imperativeness of considering all the issues raised is that in the event of the decision on that point being reversed on appeal, its decision on the rest of the points may then be considered by the higher Court for a final determination of the appeal.
See SCC (NIG) LTD V ANYA (2013) ALL FWLR (pt 703) 2047 and OKONJI V NJOKANMA (1999) 14 NWLR (pt 638) 250. The Court further held that although, a Court has a duty to pronounce on all material issues raised before it but failure to do so is not necessarily fatal to a judgment if such failure did not occasion a miscarriage of justice. Also, a Court is not bound to pronounce on an issue which has been subsumed in another issue that has been determined.
In the instant case, the Court held that for the reason that there is no commonality of interest, the order of non-suit which gives the appellants a second chance to relitigate it was the most appropriate and that the appellants would not be prejudiced in any way.
HELD
On the whole, the Court found the appeal to be unmeritorious and it was accordingly dismissed in its entirety.
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar
ON TUESDAY, 21ST MAY, 2019
Suit No: CA/C/251/2012
Before Their Lordships:
MOJEED ADEKUNLE OWOADE, JCA
YARGATA BYENCHIT NIMPAR, JCA
MUHAMMED LAWAL SHUAIBU, JCA
Between
1. MR. EYO MOSES OGUNGWA
2. MR. OKON EDET ETTA
3. MR. EWA HENSHAW
4. MR. NSA EFFANGA ITA – Appellant
(For themselves and on behalf of 117 former staff of
Eastern Match Industries Ltd and members of
National Union of Chemicals, Footwear Rubber
Leather and non-metallic Products Employees)
And
1. MR. OLUROTIMI WILLIAMS
(Receiver of Eastern Match Industries Ltd) – Respondent
2. SHANET WATCH INDUSTRIES LTD
LEAD JUDGMENT DELIVERED BY MUHAMMED LAWAL SHUAIBU, J.C.A.
FACTS OF THE CASE
The appellants herein are former staff of the Eastern Match Industries Limited and members of the National Union of Chemicals Footwear, Rubber, Leather and Non-Metallic Product Union.
The 1st respondent is a Lagos based legal practitioner who was appointed the receiver of Eastern Match Industries Ltd by Afribank Nigeria Plc. pursuant to the powers conferred on the Bank by a Deed of Mortgage Debenture dated 15/11/96 executed by the company in favour of International Bank for West Africa (IBWA) the predecessor of Afribank Nigeria Plc.
The 2nd respondent is a match producing company that purchased the defunct Eastern Match Industries Ltd. from the 1st respondent. On 11/7/2002, the appellants were notified of the appointment of the 1st respondent as Receiver of Eastern Match Industries Ltd. and that arrangement was being made for payment of their outstanding entitlements.
When the said entitlements were not paid, the appellants as plaintiffs, instituted suit No. HC/512/2002 at the High Court, Calabar, Cross River State claiming against the defendants (now respondents) jointly and severally as follows:-1.
A declaration that the plaintiffs are entitled to be paid their outstanding salaries economic relief package (Adhoc), Annual leave grants, a leave days grants, housing allowances, transport allowances, gratuities and other end of service or disengagement benefits as provided for in their terms and condition of employment.
2. An order, directing the defendants to forthwith pay to the plaintiffs the sum of N25,089,339.62 only being their outstanding salaries allowances, gratuities and other entitlements due to the plaintiffs upon the termination of their contract of employment with Eastern Match Industries Limited.
After settlement and exchange of pleadings, the matter proceeded to trial. However, when the matter came up on the 12/10/2009, learned trial judge based on what he described as “the interest of fairness and justice”, formulated six issues and asked parties to file further or additional address in that regard.
Consequently, parties readopted their written address and in a reserved and considered judgment delivered on 20th April, 2011, learned trial Judge held that the claimants’ case was tantamount to a misjoinder of parties and cause of action and thus entered judgment of non-suit with N1,000 cost to each defendant. Being dissatisfied with the judgment, appellants appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Appellant formulated five issues for the determination of the appeal. The Court after carefully and meticulously considering the submissions of learned counsel on both sides observed that the five issues are intertwine and interrelated with one another. The Court was of the view that a resolution of the first issue will inevitably determine the remaining four issues.
The main fuss of the appellants is that inspite of the subsisting order of a Court for joinder, the learned trial judge had suo motu, without asking for input from the parties non-suit their case and thereby causing miscarriage of justice to them.
APPELLANT’S COUNSEL SUBMISSIONS
Learned counsel for the appellants referred to Order 4 Rule 2 now Order 16 Rules 1 and 5 of the High Court (Civil Procedure) Rules of Cross River State which permits the joinder of parties and cause of action and contended that vide a motion filed on 16/10/2002, the appellants had sought and obtained leave to represent all the 117 former staff of the defunct Eastern Match Industries Ltd., who were also former members of the National Union of Chemicals, Footwear, Rubber, Leather and Non-Metallic Products Employees. He submitted that where more than one person have the same interest in one suit, one or more may be authorized by other persons interested to sue in such suits for the benefit of or on behalf of all parties so interested.
Arguing further, learned counsel for the appellants submitted that an order of non-suit which is tantamount to the termination of a suit prematurely without determining all the issues on merit was not the appropriate order in the circumstances of this case.
He referred to Order 16 Rule 6 of the High Court (Civil Procedure) Rules of Cross River State to contend that an order of non-suit can only be made where the trial in such a suit will be embarrassing to the parties, inconveniencing and delayed. Therefore, the remedy in this case was not to non-suit the appellants but to order separate trials. He referred to OLUSOLA V TRUST HOUSE PROPT. LTD (2010) 8 NWLR (pt 1795)1 at 4 – 6. He further submitted that before the Court can order nonsuit, it has the mandatory duty to accord parties the opportunity to address it on the propriety or otherwise of such an order which was not done in this case.
RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 2nd respondent contended that the relevant rules of Court deals with joinder of causes of action by persons claiming jointly against a defendant.
Thus it envisages that the claimants have joint interest to present a joint claim and may in addition add such other claims they have separately against the defendant. He however submitted that the said rules being cited and relied upon by the appellants only deals with joinder of causes of action but not joinder of plaintiffs. Thus, the purported leave granted by the Court does not avail the appellants as the 117 workers are not joint plaintiffs and that their names are not endorsed on the Writ of Summons.
Learned counsel for the respondent conceeded that in making the order of non-suit in this case, the learned trial judge did not afford the parties the opportunity to address him on the propriety or otherwise but he was quick to submit that the failure was rather beneficial to the appellants who woefully failed to prove their case and thus giving them yet another opportunity.
RESOLUTION OF ISSUES
In determining the appeal, the Court found that the main contention here is whether the 117 former staff of the Defunct Eastern Match Industry Ltd have common interest and grievance and therefore can maintain a representative action against the respondents through the appellants.
The Court held that the jurisprudential postulate underlying suits in representative capacities is that the person or persons suing or depending in a representative capacity must have the same interest in the proceeding. This means that parties on record and those they represent must have common interest. The Court stated the conditions or ingredients that must exist for an action to lie in a representative capacity, as follows:
(a) There must be a common interest;
(b) There must be a common grievance and;
(c) The relief claimed must be beneficial to all.
From the facts of the case, the Court found that it is clear that the appellants and those they purports to represent are pursuing interest that is personal or domestic to each person.
The Court found further that in the realm of master and servant relationship, although ten or thousand persons are given employment the same day under same conditions of service such contract of employment is personal or domestic to each of the persons. And in the event of breach, the persons do not have collective right to sue or be represented in a suit. See C.C.B (NIG) PLC V ROSE (1998) 4 NWLR (pt 544) 37 at 50.
The Court held that similarity of interest would not be sufficient in the absence of a commonality of interest. In the instant case, the appellants and others on whose behalf they claimed in representative capacity had varied, and diverse domestic interest.
On the issue of misjoinder of parties, the Court held that where there is a misjoinder of parties and cause of action, the proper order for the Court to make where the matter has been heard to conclusion would be non-suit. But where the case has not been heard on the merit, the proper order would be to set aside the claim by striking out the suit where the claim is not amendable. See C.C.B. (NIG) PLC. V ROSE (Supra) at page 46 and CHIKERE V OKEGBE (2000) 12 NWLR (pt. 681) 274.
The Court further held that it is however mandatory for the Court to hear parties on the propriety of an order of non-suit before making it. Parties in this case are ad idem that the order of non-suit was made by the learned trial judge without affording parties the opportunity to address him on it. The Court held that a Court is not allowed to raise an issue suo motu and decide it without affording the parties an opportunity to be heard. This is because in doing so, the Court is seen to leave its exalted position as an arbiter and descend into the arena of conflict.
The Court held that it is obligatory for trial Court and intermediate Courts to pronounce on all issues placed before them for determination. The imperativeness of considering all the issues raised is that in the event of the decision on that point being reversed on appeal, its decision on the rest of the points may then be considered by the higher Court for a final determination of the appeal.
See SCC (NIG) LTD V ANYA (2013) ALL FWLR (pt 703) 2047 and OKONJI V NJOKANMA (1999) 14 NWLR (pt 638) 250. The Court further held that although, a Court has a duty to pronounce on all material issues raised before it but failure to do so is not necessarily fatal to a judgment if such failure did not occasion a miscarriage of justice. Also, a Court is not bound to pronounce on an issue which has been subsumed in another issue that has been determined.
In the instant case, the Court held that for the reason that there is no commonality of interest, the order of non-suit which gives the appellants a second chance to relitigate it was the most appropriate and that the appellants would not be prejudiced in any way.
HELD
On the whole, the Court found the appeal to be unmeritorious and it was accordingly dismissed in its entirety.
Appearances:
C.A.C. Efifie Esq. with him, J.E. Ukpai
For Appellant(s)
Imo Inyang, Esq.
For 2nd Respondent(s)
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