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BEFORE THEIR LORDSHIPS Hon. Justice F. I. Kola-Olalere - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: 28 June, 2011 SUIT NO. NIC/LA/31/2010 BETWEEN 1. Ezeamaka Esther 2. Mrs. M. A. Iwayemi 3. Mr. Jaiye Akinkuolie - Claimants/Respondents (Suing for and on behalf of the 332 other retrenched staff of Legacy Co-operative Bank) AND Skye Bank Plc - Defendant/Applicant REPRESENTATION Akinwunmi Akindele, with him Tundun Akindele (Mrs), for the claimants/respondents. A. J. Owonikoko, with him I. J. Okechukwu Esq. and Mrs. Adaobi Emebo, for the defendant/applicant. RULING The claimants filed a complaint on the 23rd of August 2010 against the defendant seeking the following: 1. A determination of the question as to whether the memorandum of agreement between Skye Bank Plc and the disengaged staff of Legacy Co-operative Bank dated 12th October 2009, being an agreement reached via undue influence, duress and unsupported by consideration is not null, void and of no effect whatsoever. 2. A determination of the question as to whether, from the circumstances of the merger of Legacy Co-operative Bank with Skye Bank Plc, the disengaged staff were not by reason thereof rendered or declared redundant. 3. A determination of the question as to whether the collective agreement binding in the industry at all material times permits the defendant to re-negotiate redundancy benefits to suit its own profitability or pay gratuity benefits or other payments of its own chosen in full and final settlement of all rights accruing, claimable, or as the claimants may be entitled to under the Law, particularly the Joint Negotiating Council reviewed agreement dated 4th May 2005. 4. A determination of the question as to whether the payment of leave bonuses and ex-gratia payments are one and the same with redundancy entitlements in the industry. 5. In the circumstances of this case, whether the claimants are not entitled to redundancy payment worked in accordance with the Joint Negotiating Council reviewed agreement dated 4th May 2005. 6. An order compelling the defendant to calculate and pay the claimants the balance of their redundancy benefits in the way and manner contained in the Joint Negotiating Council reviewed agreement dated 4th May 2005. Accompanying the complaint is the statement of facts, lists of witnesses, list of documents and verifying affidavit. In reaction, the defendant through its counsel entered a conditional appearance and filed a preliminary objection both dated 8th November 2010. The preliminary objection is brought pursuant to Order 11 Rule 1(1) of the NIC Rules 2007, section 37 of the 1999 Constitution and under the inherent jurisdiction of the court and is seeking that the suit be struck out and/or dismissed for being incompetent. The grounds for the objection are set out as follows: (1) The suit was instituted as a representative action without authorization of the 332 allegedly ‘retrenched’ staff of Legacy Co-operative Bank. (2) The claimants lack locus standi to bring this suit on behalf of the 332 allegedly ‘retrenched’ staff of Legacy Co-operative Bank each of whom had a separate and individual contract of employment that was duly terminated on mutually accepted terms with the Legacy Co-operative Bank. (3) The complaint and statement of facts do not disclose any reasonable cause of action, as the claimants and the others they represent are not seeking to nullify the several individually executed agreement they entered into at different times and places with the defendant/applicant whereby they each respectively personally signed the agreement of acknowledgement of payment/renunciation of further claim in consideration of which the agreed sums were paid and received by each of them into their personal accounts maintained with the defendant/applicant at different times and places. (4) The prosecution of this case in a representative capacity will deprive the defendant/applicant of its fundamental right to fair hearing against each of the 335 ex-staffers who had individually discharged the defendant/applicant for valuable consideration. The objection is supported by a 6-paragraphed affidavit sworn to by Sesan Adebayo, a litigation assistant, on the 8th of November 2010. A counter affidavit of 7 paragraphs was sworn to by Mr. Oriola Adekunle Akinsanya on the 10th December 2010 on behalf of the claimants. The defendant/applicant further reacted by filing a reply affidavit sworn to by Adaobi Emeto a legal practitioner on the 21st February 2011. Parties filed written addresses in respect of their arguments for and against the objection which they orally adopted. The defendant/applicant raised four issues for the determination of this court as follows: 1. Whether this suit is not incompetent by reason of non-authorisation by the retrenched staff of the Legacy Co-operative Bank. 2. Whether the claimants have locus standi to institute this action and are not caught by the rule against misjoinder of parties/action. 3. Whether the claimants/respondents have disclosed a reasonable cause of action against the respondent/applicant. 4. Whether the pursuit of this suit in a representative capacity will deprive defendant/applicant of its right to fair hearing. On issue 1, the learned counsel to the defendant/applicant submitted that a representative is a person or persons given authority by persons with whom they share same interest in the subject matter of the suit to represent them for their benefit or on behalf of all interested parties. He cited Okukuje v. Akwido [2001] 3 NWLR (Pt. 700) 261 at 293 and Olasa v. Ezimuo [2003] 17 NWLR (Pt. 848) 146. He submitted further that in a representative action, the representers must have a common interest with those represented to the extent that they stand or fall together, citing C.C.B Nig. Plc v. Rose [1998] 4 NWLR (Pt. 544) 49. The defendant/applicant’s counsel contended that the claimants and all the 332 retrenched staff they represent had endorsed ‘Acknowledgement of payment and Renunciation of further claim agreements” separately and at different times and dates with the applicant for a consideration. That these form several causes of action and cannot be lumped together in one action. The defendant/applicant’s counsel further argued that assuming but not conceding that the claimants have a common interest and can bring a representative action, such action can only be brought with authorization from at least a substantial number of them. That authorization to sue, defend or so act must be given by the persons interested in suing or defending for the benefit of all persons with same interest. He went further to argue that if the authorization does not come from the persons interested to sue or defend, the action must stand in their personal capacity. He referred to Ndulue v. Ibezim [2002] 12 NWLR (Pt. 780) 164, Melifonwu v. Egbuji & ors [1982] 13 N.S.C.C. 341, Olasa v. Ezimuo, supra, Wiri & ors v. Wuche & ors [1980] 12 N.S.C.C. 1 at 4 and 5, and then went on to argue that in the claimants’ verifying affidavit accompanying the complaint, there is no exhibit of any resolution or authorization from the 332 persons the claimants claim to represent. The defendant/applicant’s counsel then concluded that this action is bad for lack of authorization to sue in a representative capacity, citing CBN v. Adedeji [2004] 13 NWLR (Pt. 890) 242. He went on to state that assuming without conceding such authorization exists, this suit will be bad for misjoinder of cause of action. On issue 2, the defendant/applicants counsel submitted that locus standi to sue is determinable from the totality of averments in the statement of claim which must reveal a legal or justifiable right, show sufficient or special interest adversely affected and show a reasonable cause of action. He submitted also that where the claimant does not have locus standi the proper order the court should make is to decline jurisdiction and dismiss the suit, citing Thomas v. Olufosoye [1986] 1 NWLR (Pt. 18) 669 and B. M. Ltd v. Woermann-Line [2009] 13 NWLR (Pt. 1157) 149. To the applicant’s counsel, the claimants/respondents including those they claim to represent had distinct and separate contracts of employment with the defendant/applicant under different terms and conditions of service and were retrenched at different times and, therefore, the three named claimants/respondents do not have the locus standi to sue on their behalf, referring to CCB (Nig) Plc v. Rose, supra. The defendant/applicant’s counsel went on to argue that the joinder of parties in a suit must be premised on a common cause of action for the purpose of bringing together all necessary parties who have the same rights or against whom such rights are claimed as co-plaintiffs or co-defendants respectively. He then submitted that where the causes of action are different and personal to the claimants, the action is bad for misjoinder of causes of action where they are lumped in one action. He cited Hyson (Nig) Ltd v. Ijeoma, supra, and then went on to argue that misjoinder of actions borders on the jurisdiction of the court to hear this suit. He referred to NDIC v. CBN [2002] 7 NWLR (Pt. 766) 272, Elabanjo v. Dawodu [2006] 50 W.R.N. 79 at 149, A. G. Kwara State v. Olawale [1993] 1 NWLR (Pt. 272) 645 and Izenkwe v. Nnadozie [1953] 14 WACA 361. The learned counsel to the defendant/applicant stated that the issue of jurisdiction was being raised on the basis of the statement of facts and on the face of the complaint as to the capacity in which the action is being brought. He urged the court to strike out this suit for misjoinder of parties and/or causes of action as the claim is not amendable while the claimants/respondents retain the right to file separate actions. He submitted that this is the approach adopted by the Court of Appeal in the Hyson (Nig) Ltd case, supra. On issue 3, the defendant/applicants counsel submitted that in order to determine whether a reasonable cause of action has been disclosed, the court only needs to refer to the statement of claim, citing Ibrahim v. Osim [1988] 3 NWLR (Pt, 82) 257 and Shell Petroleum v. Nwaka [2004] 1 N.L.L.R. (Pt. 2) 401. That where a claimant has not disclosed a reasonable cause of action in its pleadings, the court should strike out the pleading and dismiss the suit, citing Thomas v. Olufosoye, supra. He submitted that the claimants/respondents have not disclosed a reasonable cause of action against the defendant/applicant. He referred to the case of Compt. Comm & IMND Ltd v. O.G.S.W.C. [2002] 9 NWLR (Pt. 773) 629 and Onalaja v. A. P. Ltd [1991] 7 NWLR (Pt, 206) 691 at 697. On issue 4, learned counsel to the defendant/applicant submitted that the right to fair hearing is entrenched in section 36 of the 1999 Constitution and that it is a settled principle of law and basic requirement of natural justice that a party should be given an opportunity to state his case without let or hindrance. He referred to UMTHMB v. DAWA [2001] 16 NWLR (Pt. 739) 445, Onwumechili v. Akintemi [1985] 3 NWLR (Pt. 13) 504 and Essien v. Edet [2004] 5 NWLR (Pt. 867) 519. The defendant/applicants counsel argued that if this suit proceeds on the basis of a representative action, the defendant/applicant will be denied the opportunity of examining and making out its case against the other remaining 332 not named in this suit. He finally urged the court to uphold the grounds of the objection, strike out the statement of facts and consequently dismiss the action for lack of jurisdiction. In reply, the claimants/respondents framed 4 issues for determination as follows: (i) Whether the claimants were authorized by the 332 retrenched staff of the Legacy Co-operative Bank to institute this action. (ii) If the claimants can prove authorization, whether the issue of locus standi arise in this suit and whether any issue of misjoinder of parties can arise in a case of collective agreement or joint negotiation. (iii) Whether the claimants/respondents have disclosed a reasonable cause of action against the applicant. (iv) Whether any issue of fair hearing arose from the claim before the court. Learned counsel to the claimants/respondents argued issues (i) and (ii) together. He contended that by the physical attendance in court of the claimants/respondents and those they claim to represent the court will have no difficulty in coming to the conclusion that the claimants/respondents were authorized by the 332 retrenched staff to sue and represent them. The claimants/respondents counsel referred the court to paragraph 2 of the counter-affidavit sworn to by Mr. Oriola Adekunle Akinsanya who is the chairman of the disengaged staff of the defendant/applicant where he deposed to the fact that the claimants/respondents were authorized and mandated to institute this action. He submitted that this evidence is unchallenged and should be believed by the court as the truth, citing Olohunde v. Adeyoju [2002] 6 SC (Pt. 111) 118, Jeric (Nig) Ltd v. Union Bank Plc [2000] 12 SC (Pt. 11)133. The claimants/respondents’ counsel submitted further that the claimants/respondents and those they represent have a common interest and that Exhibits A, B, C and D which the defendant/applicant attached to its notice of objection shows that the defendant/applicant had recognized the body known as association of disengaged staff as a collective bargaining body for the claimants/respondents and negotiated with the said body. He submitted also that the case of C.C.B (Nig) Plc v. Rose, supra, cited by the defendant/applicant is inapplicable even on the face of the documents exhibited by the defendant/applicant. The claimants/respondents counsel then referred the court to section 7(1)(c)(iii) of the NIC Act 2006 which provides as follows: The court shall have and exercise exclusive jurisdiction in civil causes and matters relating to the determination of any question as to the interpretation of the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement. It was his submission that the court is being asked to look into the memorandum of agreement dated 12th October 2009 between the defendant/applicant Skye Bank Plc and the claimants/respondents represented by Kunle Akinsanya, Akeeb A. Bello and others set out in schedule 1 of the agreement. Arguing further, the claimants/respondents’ counsel referred to section 14 of the NIC Act 2006 and submitted that in this instance, the court can look into this action filed in a representative capacity to avoid a multiplicity of legal proceedings arising. He submitted that the position of the law is that “no cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties and the courts are enjoined in every cause or matter to deal with the matter in controversy so far as it regards the right and interest of the parties actually before it”. The claimants/respondents counsel stated that this quotation was the decision of the Supreme Court in Peenok Investments Ltd v. Hotel Presidential [1982] 12 SC 1 and was followed in the recent case of Nnaji v. N.F.A. [2010] 11 NWLR (Pt. 1206) 438. He also cited Sapo v. Sunmonu [2010] 11 NWLR (Pt. 1205) 374. On the issue of locus standi, the claimants/respondents’ counsel was of the view that their locus has been shown from Exhibit OOA1 attached to the counter-affidavit which is the minutes of meeting of the association of disengaged staff of Skye Bank Plc and by the fact that the claimants/respondents entered into collective negotiation as a block with the applicant. That a party making a claim for payment of redundancy benefits cannot be said to lack locus standi. It was learned counsel’s submission that when a party’s standing to sue is in issue, the question is whether the person whose standing is in issue is a proper person to request an adjudication of a particular issue and not ‘whether the issue itself is justifiable’, referring to Gbadamosi v. Dairo [2001] 6 NWLR (Pt. 708) 137. He went further to state that the claimants/respondents have by their counter-affidavit shown the ‘interest, giving standing to sue’ and have shown what they need to show within the ambit of the law to establish their locus, citing Adenuga v. Odumeru [2003] 4 SC (Pt. 1) 1. On the issue of jurisdiction, the claimants/respondents’ counsel argued that it is not predicated on any issue or ground raised by the defendant/applicant in the objection and so should be discountenanced by the court, citing Owhonda v. Ekpechi [2003] 9 – 10 SC 1 and Mobil Producing UnLtd v. Monokpo [2003] 12 SC (Pt. II) 50. Counsel went on to state that the issue of jurisdiction raised in the defendant/applicant’s written address is predicated on the arguments in respect of the statement of facts and the capacity in which the action was brought. He submitted that the court has exclusive jurisdiction relying on the provisions of section 7 of the NIC Act 2006 and that the issue of capacity has also been answered by the claimants/respondents in their arguments. On the issue of fair hearing, counsel to the claimants/respondents submitted that the defendant/applicant has not shown how it will be denied from presenting its case against the claimants/respondents and those they represent who happen to be available through a representative action instead of filing 335 cases all having the same claim, interest and substance. He drew the courts attention to the fact that all of the arguments contained in the defendant/applicant’s written address particularly paragraph 6.13 are evidential in nature; and the law is that parties are to establish their claims by evidence given in court and not counsel’s address. He cited Newbreed Ord. Ltd v. Erhomosele [2006] 2 SC (Pt. 1) 136 and Obasi Brothers Co. Ltd v. M.B.A. Securities Ltd [2005] 2 SC (Pt. 1) 51 in support and then went on to submit that the court is also not expected to raise extraneous issues suo-moto without hearing the parties. He cited Ogundele & anor v. Agiri & anor [2009] 12 SC (Pt 1) 135. The claimants/respondents’ counsel finally urged the court to dismiss the notice of preliminary objection and permit the case to proceed to trial. Replying on points of law, the defendant/applicant stated that it had refuted the claimants/respondents’ assertion in paragraph 2 of the counter-affidavit where the claimants/respondents deposed to its authority to sue. That Exhibit OOA1 annexed to the counter-affidavit does not form part of the claimants/respondents’ claims as it was not frontloaded as facts in proof of their case. He further submitted that where an affidavit is inconsistent with the documents annexed to it as corroborative evidence, the affidavit needs not be denied before the court can disregard it, referring to Ekekeugbo v. Fibresima [1994] 5 NWLR (Pt. 335) 707 at 730 – 731. The defendant/applicant’s counsel referring to the book, Labour Law 5th Edition by Simon Deakin & Gillian S. Morris and West African Distillers Ltd & 2 ors v. Food Beverage and Tobacco Senior Staff Association [1978 – 2006] DJNIC 368 – 369 submitted that the claimants/respondents cannot bring this suit as a collective action because this action is not a trade dispute neither are the claimants/respondents a trade union or employees of the defendant/applicant. That this feature of their capacity is the more reason why they cannot bring this suit as a collective action as what the claimants/respondents seek to set aside does not qualify as a collective agreement. He referred to Management of Metal Construction (W.A) Ltd v. Metal Products Workers of Nigeria [1978 – 2006] DJNIC 152 at 154. On the issue of misjoinder of parties/causes of action, the defendant/applicant’s counsel submitted that the cases of Peenok Investment Ltd v. Hotel Presidential, supra, and Nnaji v. NFA, supra, cited by the claimants/respondents are distinguishable and do not apply to this case. Replying to the argument of the claimants/respondents’ counsel that the court cannot take cognizance and pronounce on the annexure to the statement of facts because the documents are not in evidence, the defendant/applicant’s counsel submitted that the court can look at them in determining whether they have disclosed a cause of action. He cited Omomeji v. Kolawole [2008] 14 NWLR (Pt. 1106) 180 at 205 and finally urged the court to dismiss/strike out this suit. We have carefully considered the issues raised in this preliminary objection, the submissions of counsel and the authorities referred to on record. The defendant/applicant is essentially praying the court to strike out/dismiss this suit firstly on the basis that it was instituted as a representative action without authorization of those being represented, secondly that the claimants lack locus standi because the 332 retrenched staff being represented had separate and individual contracts of employment; thirdly that no reasonable cause of action has been disclosed. Order 4 Rule 2 of the Rules of this court 2007 states as follows: Where a claimant sues, or a defendant or any of several defendants is sued in a representative capacity, the originating process shall state that capacity. This rule does not require more and the capacity in which the claimants/respondents sue has been stated on the complaint ‘suing for and on behalf of the 332 other retrenched staff of Legacy Co-operative Bank’. The claimants/respondents have gone further by filing a verifying affidavit together with the complaint and other originating processes which was sworn to by Akinkuolie Adele Durojaiye, acting secretary of the association of disengaged staff of the defunct co-operative Bank now Skye Bank Plc. In paragraph 2 of the verifying affidavit, he deposed as follows: 2. That the named claimants herein were mandated by the 332 other retrenched staff of Legacy Co-operative Bank to sue for themselves and on behalf of all the retrenched members of the Association of disengaged staff of the defunct Co-operative Bank Plc now Skye Bank Plc. Now, the Supreme Court in the case of Jack v. Whyte [2001] 6 NWLR (Pt. 709) 266 at 275 per Mohammed JSC in the lead judgment stated 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. The attitude the court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. 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. We are satisfied that the claimants/respondents have instituted this action on the authority of the 332 retrenched staff of Legacy Co-operative Bank and in compliance with the Rules of this court. Closely connected with this is the issue of locus standi raised by the defendant/applicant. The claimants/respondents have already shown authority to sue on behalf of the 332 retrenched staff they represent and are, therefore, not deprived of locus standi. The defendant/applicant argued that the claimants/respondents do not have the standing to sue for and on behalf of the other 332 retrenched staff because their contracts were separate and several. A look at the complaint, statement of facts and the claims of the claimants/respondents enumerated above reveal that it is not an action in respect of individual contracts of employment. Rather, from their claims, the respondents and those they represent have a common interest, the same grievance and the nature of the reliefs will be beneficial to all of them. In other words, each of them is individually entitled to some share or interest in the claims. See A. G. Federation v. A. G. Abia State & ors [2001] 7 SC (Pt. 1) 32 and Olatunji v. Registrar Co-operative Society [1968] NMLR 393. There has, therefore, been no misjoinder of parties of misjoinder of causes of action. On the issue whether the claimants/respondents have disclosed a reasonable cause of action against the defendant/applicant, we find that a reasonable cause of action has been disclosed against the defendant/applicant in the statement of facts. The contention by the defendant/applicant that it will be denied the opportunity of examining and making out its case against the 332 retrenched staff and, therefore, denied fair hearing is not tenable. The defendant/applicant has not shown how it will be denied from presenting its case but rather seems to be looking for grounds to prepare an appeal. The rules in respect of suing in a representative capacity are well settled. In this suit, there are numerous persons numbering 335 that have a common interest and a common grievance. It is, therefore, convenient and just for all of them to sue in a representative capacity rather than asking the three hundred and thirty five (335) of them to institute their actions separately which will be very tedious and cumbersome. This court has the power under section 14 of the National Industrial Court Act to resolve labour disputes in a manner that avoids multiplicity of actions. To allow 335 retrenched staff to sue individually in respect of a matter where the grievance and the interest are common to all of them would surely not be in the spirit of the said section 14. The argument of the defendant/applicant in this regard certainly lacks merit. For all the reasons given above, we hold that this preliminary objection lacks merit and is hereby dismissed. This matter shall proceed to hearing. Costs of N10,000.00 is awarded against the defendant/applicant. Ruling is entered accordingly. ………………………………. Hon. Justice F. I. Kola-Olalere Presiding Judge ……………………………………... ……………………..………….… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge