Hyson (Nigeria) Limited V. Augustina N. Ijeoma & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A.
This appeal is against the ruling of the High Court of Lagos State (coram L.G.A. Marsh, J) delivered on the 22nd October, 2002 refusing an application filed by the defendant/appellant which sought for an order striking out the plaintiffs/respondents’ joint action against the defendant/appellant. The learned trial Judge in the ruling appealed against held that the plaintiffs/respondents’ action before the lower court was properly constituted as to the parties and causes of action and on that ground refused to grant the defendant/appellant’s prayer to strike out the plaintiffs/respondents’ suit.
After entering the record of appeal on the 12th May, 2005, the appellant’s counsel timeously filed and served on the respondent, the appellant’s brief of argument on the 11th July, 2005. Since then the respondents have neglected or failed to file their brief as provided by Order 6 rule 4 of the old Court of Appeal Rules, 2002 (equivalent to Order 17 rule 4 of the new Court of Appeal Rules, 2007) that failure by the respondent to file brief prompted the appellant to seek for and obtain an order of the court setting the appeal down for hearing on the appellant’s lone brief on 21st September, 2006. The respondents despite service of all processes including hearing notice on them took no step on their part and the appeal was heard on the appellant’s brief on the 15th November, 2007.
The learned counsel to the appellant raised one issue for determination distilled from the singular ground of appeal, i.e.:
“Whether the lower court was right in refusing to strike out/order separate trial on this matter given the state the facts and law in this suit.”
The appellant’s learned counsel relied on the provision of Order 14 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1994 applicable at the time of filing the suit which is in pari material the same with Order 13 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2004, and it provides:
“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 he or they may be entitled to without any amendment.”
It was submitted for the appellant that the above rule only applies where the plaintiffs or claimants are engaged or involved in a similar as opposed to simply common transaction. It was further contended that the respondents were employed by the appellant at different times with separate contracts of employment and different conditions of service and therefore have separate and different causes of action against the appellant. It was further submitted that for the respondents to sue properly as co-plaintiffs, they must have the same or common interest in the subject matter of the proceedings that they persue a common cause of action. In the realm of master and servant relationship, as in the instant case, where several persons are separately employed, under similar conditions of service, the contract of employment in respect of everyone of them is personal to him/her. In the event of breach, they do not have a collective right or common cause of action to sue together collectively or by a representative action. The views of my learned brother, Ubaezonu, J.C.A in the leading judgment in C.C.S. (Nig.) Ltd v. Rose (1998) 4 NWLR (Pt. 544) 37 at pp. 44 to 45 paras H-C; 45 paras E-H is apt on the case at hand, where the learned jurist observed:
“Four named persons- Mrs. Amadi Rose, Epundu Joseph, Humphrey Eze and Patrick Enedeanya purported to sue ‘for themselves and on behalf of other 11 employees of the defendant retired or retrenched by the defendant. Each of these 15 persons was employed on a different date as can be seen from the annexure A attached to the statement of claim and already referred to in this judgment. Each had his/her conditions of service which conditions are personal to him/her. The cadre of each is different from another. Their years of service are different. Their entitlements based on the basic salary are different. The balance of their claims based on their total emolument is different, one from another. The value of their earned leave is different, one from another. Their six months salary in lieu of notice of retirement differs from each other. Their accrued salary within leave period is different from one another. Their transport allowances are different from one another. Their expected claims are also different. All these are borne out by annexure which is attached to the statement of claim and forms part of it. I say without equivocation that there can be no better example of misjoinder of parties and causes of action as is presented in this case. Each of the 15 or 13 persons for whom, the named plaintiffs purported to sue for has his/her own cause of action which cannot be joined with another. The law for misjoinder of parties or cause of action applies also to misjoinder of parties or cause of action in contract as in the present suit. In Smurthwaite & Ors v. Hannay (1894) AC 494 the House of Lords held that the several plaintiffs who claimed to have shipped cargo in a general ship under similar bills of lading could not join in one action because each of them had a distinct and separate cause of action. In fact, the principle in Smurthwaite & Ors v. Hannay (supra) is identical with the principle in the cause under consideration in this appeal. 15 or 13 plaintiffs who contracted individually with the appellant bank under different terms and conditions and at different times have sought to sue collectively in one suit. That cannot be. It is not the law in Nigeria as in England where the above cases were decided. In Carter v. Rigby & Co. (1896) 2 Q.B. 113, a number of miners had been drowned through the flooding of a mine. The personal representatives of the deceased joined miners in one action against the proprietors of the mine, claiming that the mine had been flooded through negligence for which they (the proprietors) were responsible. It was held that the plaintiffs could not join in one action under the same rule which is similar to Order 3 rule 3 of the High Court Rules of Anambra State.”
The provision of Order 14 rule 1 and Order 13 rule 1 alike of the High Court of Lagos State (Civil Procedure) Rules, 1994 and 2004 respectively is very clear on persons that may be joined in one action as co-plaintiffs. These are persons in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given upon such common right for such plaintiff or plaintiffs entitled to relief and for such relief as he or they may be entitled to without amendment. Thus, while several plaintiffs may claim a right to relief under a common cause of action either jointly or severally and each one or more of such plaintiffs, may be given judgment upon such relief as he or they may be entitled to without amendment, where the cause or causes of action are different, distinct and personal to each plaintiff against a common defendant, as in this case, the joinder of such plaintiffs which tantamount to joinder of causes of action will be improper. In other words 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.
The principle of joinder of parties in a suit is dictated by the need to have before the Court such parties as would enable it to effectively and completely adjudicate upon and settle all questions in controversy in the suit. The requirement for joinder of plaintiffs in one suit are:
- The right to relief claimed must be commonly vested in the plaintiffs jointly or severally or in the alternative; and
- If the plaintiffs had instituted separate actions, a common question of law or fact would arise in all such actions.
The deliberate omission of the phrase” in respect of and arising out of the same transaction or series of transactions” was intended to remove the third condition under the 1994 High Court of Lagos State (Civil Procedure) Rules which further required that the right to relief must be in respect or arise out of the same transaction or series of transactions.
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. In these circumstances, one hardly sees any of the above two talkless of both conditions for joinder of plaintiffs being satisfied.
Where the respondents are likely to put up different cases and rely on different pieces of evidence in the prosecution of their case which are different, distinct and independent of one another, the court below was in error to have refused an application timeously brought by the appellant to strike out the joint action brought by the respondents, and order separate trials. It will save valuable time and resources and serve the best interest of the parties to strike out the proceedings from the onset and order separate trials in the circumstances of this case which may lead to undue protraction of judicial process. The view of my learned brother, Niki Tobi, J.C.A. (as he then was) in C.C.B. (Nig.) Plc v. Rose (supra) at P.49 is apt on such a time-waste exercise, where his lordship state:
“For parties to be joined in a suit they must have the same or common interest, to the extent that they have a common mission or cause to persue. Where the interests are separate, distinct or irreconcilable, a judge will not grant an application for joinder. To grant such an application is tantamount to the court forcing persons with un-identical or unrelated causes of action in the litigation, a situation which will run against the accepted tenor or principles of justice. In the initial desire on the part of the court to save litigation time, so much confusion arises in the course of the litigation which ultimately results in protraction of the judicial process.”
The proper order to make in a case where there is a misjoinder of plaintiffs or causes of action where the case has not been heard is to strike it out and/or order for filing of separate suits by the misjoined plaintiffs. If heard as the suit is presently constituted before the lower court, it may unfortunately amount to waste of valuable time, energy and resources and ultimately return the parties to a non-starter position. The views of my learned brother, Ubaezonu, J.C.A. in C.C.B. (Nig) Plc v. Rose (supra) at P. 46, paras G-H runs thus:
“Where there is a misjoinder of parties and causes of action, the proper order for the court to make where the mailer 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. In the instant case therefore, the proper order for the court to make would be to strike out the respondents’ claim.”
The learned trial Judge therefore misdirected himself in wrongly refusing to strike out the plaintiffs/respondents’ suit and/or ordering the filing of separate actions since they have no common cause to persue. Accordingly the singular issue for determination, 1 resolved in favour of the appellant and the lone ground of appeal from which it was distilled succeeds. The appeal is accordingly allowed and the order refusing to strike out the respondent’s suit is set aside. It is further ordered that the respondents suit before the lower court be and is hereby struck out for misjoinder without prejudice to their rights to file separate actions against the appellant.
Cost assessed at N30, 000.00 is awarded to the appellants against the respondents.
Other Citations: (2008)LCN/2629(CA)
