National Electricity Liability Management Limited V. Emmanuel Sunday Omotusi & 400 Ors (2016)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABUBAKAR, J.C.A.
This is an interlocutory appeal against the ruling delivered by the Federal High Court presided over by Hon Justice Abdullahi Mustapha (C.J.) on the 27th day of January 2009 dismissing Appellants preliminary objection challenging the competence of the suit before the lower Court and the Jurisdiction of the Federal High Court to hear and determine the suit.
The facts giving rise to this appeal are briefly that the 401 Respondents in this appeal, as joint Plaintiffs commenced action against the Appellant by originating summons at the Federal High Court claiming the following:
1. A DECLARATION that by virtue of the Federal government circular No. SWC/S/104/S.8/25 dated 11th May 1999 which emanated from the Presidency, Office of the Chairman salaries, income and wages commission, the Plaintiffs who are retired from the National Electric Power Authority in the year 2000 are entitled to an increase of 1500% on their pension.
2. A DECLARATION that by virtue of the Federal Government Circular Ref. No. B. 63316/S.1/X of 6th July 1999, which emanated from the
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Presidency, Office of the Chairman, National Salaries, Income and Wages Commission, the Plaintiffs who were retired from the National Electric Power Authority in the year 2000 are entitled to an increase of 30% of the pension.
3. A DECLARATION that by virtue of the Federal Government Circular Ref. No. SWC/04/Vol. IV/1011 dated May, 2000 which emanated from the Presidency Office of the Chairman National Salaries, Income and Wages Commission, the Plaintiffs who are retired from the National Electric Power Authority in the year 2000 are entitled to an increase of 142% on their pension.
4. AN ORDER that the Defendant should give effect to the Federal Government Circular No. SWC/5/104/S.8/25 of 11th May 1999, Circular Ref. No. B632/S.1/X of 6th July 1999 and Circular No. SWC.4/Vol. IV/1011 of 17th May 2000 by calculating and increase the pension of the Plaintiff in accordance with the Federal Government Directives.
5. AN ORDER that the Defendant should pay the Plaintiffs all what they are entitled to on the basis of the pension increases from the effective dates of the Federal Government Directives.
The Appellant as defendant at the Court
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below immediately filed Notice of Preliminary objection dated 14th May 2004. The objection is at page 53-54 of the record of appeal. The grounds upon which the Defendant/Appellant brought the objection are as follows:
I. There are 401 Plaintiffs purporting to be former employees of the Defendant claiming in the suit with respect to their alleged several and individual contracts of employment with the Defendant, none of which related facts is known or admitted by the Defendant.
II. The fact of each of the 401 Plaintiffs being a retiree of the defendant, his contract of service (if any) and the application to him of the alleged Federal Government Circulars is radically disputed by the Defendant.
III. The alleged contract of service (if any) for each of the 401 Plaintiffs is personal to him as well as the claims (if any) thereunder and such 401 different claims and causes of action so wrongly constituted in one action will result in incalculable and unimaginable inconvenience and embarrassment to the Defendant as to render fair and proper trial impossible.
IV. The postulations in the originating summons are at best academic; disclose no
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reasonable cause of action and this Honorable Court has no jurisdiction to entertain it.
The learned trial Judge took oral submissions on the preliminary objection and delivered a considered ruling on the 27th day of January 2009 dismissing the preliminary objection. The Defendant/Appellant became aggrieved by the decision of the lower Court dismissing its preliminary objection and therefore brought this appeal upon five grounds of appeal.
The grounds and their respective particulars are found at pages 70-71 of the record of appeal.
Learned Counsel Ezeobi filed Appellants brief of argument on the 21st day of April 2010, while learned Counsel Akinrele filed the Respondents brief on the 22nd day of April 2016.
The Appellant nominated four issues for determination through learned Counsel, the issues are set out as follows:
i. Whether this suit commenced by originating summons by 401 purported retirees of the National Electricity Management Market Company Limited (NEMMCO) for declaratory and injunctive reliefs, contentious and hostile in nature, was commenced by due process of law having regard to the applicable law and binding
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precedents including Order 2 Rule 2 Federal High Court (Civil Procedure) Rules 2000 which mandatorily requires such suit to be commenced by way of writ of summons. (Grounds 1 & 2 of Grounds of Appeal).
ii. Whether the learned trial Chief Judge was right in conceiving the Appellants preliminary objection as a demurrer and so incompetent when it was an objection to the jurisdiction of Court required by law to be taken at the earliest stage (Ground 3 of Grounds of Appeal).
iii. Whether this suit by 401 purported retirees of NEPA as joint Plaintiffs purportedly employed at different places, times for varying positions and conditions of service was not badly constituted for misjoinder of parties and causes of action (Ground 4 of Grounds of Appeal).
iv. Whether the trial Court was right in failing to specifically consider and follow the binding precedents cited and directly relevant on the recondite issue of whether the suit was badly constituted by misjoinder of parties and causes of
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action.
The Respondents through learned Counsel nominated two issues for determination and submitted argument in support. The issues nominated by the Respondents are also reproduced as follows:
I. Whether the action of the Respondents before the Federal High Court was competent.
II. Whether the Court of Appeal in circumstances of this case being an interpretation of Federal Government circulars can determine the suit on its merit in the interest of Justice.
Addressing this Court on Appellants issue number one, Learned Counsel Theodore Jnr. Ezeobi, said Appellants claim before the lower Court filed by the Plaintiffs was for declaratory reliefs by interested persons and some reliefs and claim for remedies for civil wrong. Learned counsel said by the clear provisions of Order 2 Rule 2 (1) of the Federal High Court (Civil Procedure Rules) 2000, such actions must be commenced by writ of summons and not originating summons. Learned Counsel referred to NATIONAL BANK OF NIGERIA & ANOR v. ALAKIJA & ANOR 1978 2 LRN 78, to submit that actions commenced pursuant to Order 2 Rule 2(1) of the Federal High Court Rules must be
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commenced by writ of summons and that the provisions are mandatory and do not admit of any discretion, he submitted that the provisions are mandatory. Learned counsel referred to the Affidavit in support of the originating summons to submit that the suit filed by the Plaintiffs raised several contentious and hostile issues of facts and therefore require oral evidence to be led in proof. Learned counsel said proceedings commenced pursuant to Order 2 Rule 2(2) in which a claim is for declaration shall be begun by writ. Counsel said the proceedings begun by the Plaintiffs in the instant case are contentious and hostile and they ought to have been commenced by writ of summons. Learned Counsel also contended that the lower Court was wrong when it held that originating summons are appropriate in commencing the instant proceedings. Leaned Counsel urged this Court to hold that the instant proceedings having been commenced by originating summons are incompetent, null and void.
?In his response learned counsel for the Respondents submitted that the case of the Plaintiffs Respondents in this appeal relates to interpretation of Government circular number
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SWC/S/104/S.8/25 of 11th May 1999, circular number 8.632S. 1/X dated 6th July 1999 and circular number SWC/04/Vol. IV/1011 dated 17th May 2000, learned Counsel said the main issues raised by the Plaintiffs relate to the interpretation and construction of documents or instruments of the Federal Government of Nigeria. Learned Counsel then cited the provisions of Order 2 Rule 2(1) of the Federal High Court (Civil Procedure Rules) 2000. Learned Counsel also submitted that the Plaintiffs exhibited the circulars to be interpreted are at pages 32-33 and 34 of the record of appeal. Counsel referred to the originating summons at page 6 of the record of appeal and on page 6 of the record, the Plaintiffs are clearly seeking for interpretation of the circulars and the questions submitted for determination are also clearly set out at pages 6 and 7 of the record of appeal. Learned Counsel for the Respondent also set out the reliefs sought by the Plaintiffs and submitted that plaintiffs did not introduce any issue of facts that is likely to generate any dispute or lead to hostile proceedings, more importantly Counsel for the Respondents said the Appellants
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failed to raise any issues of facts contesting the existence, authenticity or wordings of the circulars. Counsel submitted finally that the mode of commencement of the action filed by the plaintiffs is proper, he therefore urged this Court to so hold.
I must state at once that correctness of mode of commencement of an action, or adoption of wrong mode of commencement of an action is a mere irregularity and does not render the entire proceedings a nullity see: ADEBAYO v. JOHNSON SC 151 67. Learned Counsel for the Respondents clearly took this Court through the processes filed at the Court below, in particular Counsel was explicit in demonstrating the grievance of the Plaintiffs where reference was specifically made to specific circulars calling for interpretation. I have no doubt that where facts are likely to be contentious, originating summons is not the appropriate mode of commencement of such action. In the instant case, the plaintiffs have shown that they are concerned with the interpretation of some specific circulars, which they listed, and the Plaintiffs further stated that they require no facts in establishing their claim, and they specifically
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submitted that there was no likelihood of substantial dispute of facts. The law is well settled that originating summons may be employed to commence an action where the issues involved are of construction of a written law, instrument deed, will, or any other document or questions that are of pure law and law alone where it is unlikely that substantial dispute of facts may arise see: KEYAMO v. HOUSE OF ASSEMBLY, LAGOS STATE (2002) 18 NWLR (Pt. 799) 605 at 613. Proceedings are commenced by originating summons where the sole or principal question at issue is or is likely to be one of construction of a written law, or any instrument made under any written law or deed or will or other document or some question of law where it is unlikely that any substantial dispute of facts will arise see: WAKWAH v. OSSAI (2002) 2 NWLR (Pt.752) 548 at 561-562. The Respondents in the instant appeal have amply demonstrated that the issue before the lower Court was wholly and exclusively on the interpretation and construction of documents, and therefore commencement of action by originating summons by the Plaintiffs is appropriate. Originating summons from the plethora of judicial
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decisions in our Court becomes appropriate where the questions in controversy between the parties revolve around simple questions of construction of documents and would not require the settlement of pleadings. See:AGBAKOBA v. INEC (2008) 18 NWLR (Pt. 1119) 489 SC. I think the Respondents, as plaintiffs are right in commencing the action by originating summons so also the learned trial Judge. This issue is resolved in favor of the Respondents against the Appellant.
On the issue of demurrer, learned Counsel for the Appellant contended that the lower Court grossly misunderstood the preliminary objection filed by the Defendant Appellant as demurrer. He said the objection raised at the lower Court related wholly and exclusively to the competence of the proceedings and the jurisdiction of the lower Court. He said issue of jurisdiction can be raised at any stage of the proceedings, that if the issue is raised early enough in the life of the suit, it may assist the Court and the parties to conserve energy for other business of the Court, so doing may also cut unnecessary expenditure and waste, learned counsel referred this Court to SKENCONSULT & ANOR v.
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UKEY (1991) 1 SC 6. Learned counsel for the Respondents said since the Defendant raised preliminary objection to the suit at the lower Court, the defendant is deemed to have admitted the facts, and the next business of the lower Court was to proceed to interpret the documents.
The learned trial Judge at page 16 of the record of appeal said as follows and I quote:
“As held in the case of NWADIALO v. SHELL 1990 5 NWLR (Pt. 150) 322, the defendant by merely filing the Notice of Preliminary Objection and without filing a statement of defence have revived the now abolished demurrer proceedings and have indeed admitted the deposition filed in support of the originating summons. Although it was argued by the learned SAN for the defendant that the defendant does not admit any of the plaintiffs is a staff of the Defendant, since the Defendant did not file any counter affidavit in opposition to the originating summons, it cannot be heard to say at this stage that the Plaintiffs were not staff of the Defendant.”
?The Appellant is of the opinion that since the objection touches on the competence of the Court or its jurisdiction to hear and determine the
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action, it will be totally unnecessary to require the Defendant Appellant to file defense before its objection becomes competent. The Respondents said by filing the objection the Appellant is deemed to have admitted the claim by the Respondents.
Order 16 of the Federal High Court (Civil Procedure) Rules 2009 abolished demurrer in the Federal High Court. From the extract above the learned trial Judge is of the view that the Defendant ought to have filed defense before raising the objection. The interpretation of Order 25 Rules 1 & 2 of the Federal High Court (Civil Procedure) Rules 2000 with respect to demurrer proceedings abolished before the Federal High Court and how parties seeking to raise preliminary objection must proceed came before this Court. The issue was discussed in BARR IHEDIOHAMMA AKPONYE v. CHIEF (DR.) RAY IHUOMA & ORS (2013) LPELR-20710 (CA), the issue was precisely on the interpretation of Order 16 of the Federal High Court (Civil Procedure) Rules 2009 on whether a defendant can challenge the jurisdiction of Court in a matter, without necessarily filing statement of defense even where the Rules of Court provide otherwise. In
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the lead Judgment this Court said as follows:
“Order 16 of the Federal High Court (Civil Procedure) Rules 2009 is reproduced as follows:
“1. No demurrer shall be allowed. 2(i) A party shall be entitled to raise by his pleadings any point of law, and any point of law so raised shall be disposed of by the Judge who tries the cause at or after the trial. 3. A point of law so raised may be by consent of the parties, or by Order of the Court or a Judge in Chambers on the application of either party be set down for hearing and disposed of at any time before the trial, 4. If in the opinion of the Court or a Judge in chambers the decision on the point of law substantially disposes of the whole action or any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or the Judge in Chambers may thereupon dismiss the action or make such order therein as may be just. 5. The Court or the Judge in Chambers may order any pleadings to be struck out, on the ground that it discloses no reasonable cause of action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge in Chambers may order the
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action to be stayed or dismissed, or judgment to be entered accordingly as may be just. 6. No action or proceedings shall be open to objection on the ground that a merely declaratory judgment or order in sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.
John Inyang Okoro JCA (as he then was) in Federal College of Education Oyo v. Akinyemi 2007 LPELR-8482 CA, interpreted Order 25 Rules 1 & 2 of the Federal High Court (Civil Procedure) Rules 2000, with respect to whether demurrer proceedings have been abolished in the Federal High Courts, and how a party seeking to raise a preliminary objection must do. His Lordship relied on Shell-Petroleum Development & 5 others v. NWANKA (2001) 10 NWLR (Pt. 720) 64 and said:
“? There is no doubt demurrer proceedings had been abolished in the Federal High Court and any party seeking to raise any preliminary objection must follow the rules governing the Court which the objection is to raised. I had earlier stated that rules of Court are meant to be obeyed. However the Supreme Court has cautioned against following rules of
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Court sheepishly and that at all times the interest of justice is paramount? I am of the view that where an objection has to do with jurisdiction simpliciter it can be raised whether or not the defendant has filed pleadings. Where however the matter before the Court is complicated, as to where it will require facts and investigation then the Court order pleadings?”
His Lordship Okoro, JCA (as then was) concluded by saying:
“Where jurisdiction is the root of the matter and the claim can be dismissed for lack of jurisdiction simpliciter, it will serve no useful purpose to file a defence notwithstanding the rules of Court, the learned trial Judge was therefore in error when he struck out the application of the Appellant on the ground that he did not plead issue of jurisdiction the basis of the objection in his defence”.
From the decision of my brother Okoro JCA (as he then was), jurisdiction of Court may be challenged without necessarily filing statement of defence even where rules of Court provide otherwise, so long as so doing does not defeat the ends of justice, more so the jurisdictional issue raised by the defendant touched on
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Plaintiffs locus standi it is settled that issue of locus standi could be raised after the Plaintiff has duly filed his pleadings, by a motion or in a statement of defence. EBONGO v. UWEMEDEMS (1995) 8 NWLR (Pt. 411) page 22.”
I think the lower Court was in error when the learned trial Judge held that the Appellant had to file defense before the Court could hold the preliminary objection to be competent. This issue is resolved in favor of the Appellant.
On whether the suit by the 401 joint Plaintiffs is not bad for misjoinder, learned counsel for the Appellant said the plaintiffs cannot sue as joint Plaintiffs claiming same remedies, and pension rights arising from the same contract of employment. Learned Counsel for the Appellant said each of the joint Plaintiffs has different contract of service personal to him with respect to which he alone can sue. He said in the result, there are 401 persons and must therefore maintain 401 separate causes of action. Learned Counsel said the lower Court was in grave error when it held at page 69 of the record of appeal that the joint Plaintiffs could maintain joint action as Plaintiffs in the instant case,
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citing Order 12 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000 which according to the lower Court allows persons with the same cause of action to approach the Courts as joint Plaintiffs.
Learned Counsel for the Appellant said the lower Court over-looked the fact that each of the employees had his own separate and distinct contract of service giving rise to different personal and individual cause of action with respect to which he alone could sue. Learned counsel referred this Court to the decision in AMACHREE & ORS v. NEWINGTON 14 WACA 97 and CO-OPERATIVE AND COMMERCE BANK (NIG) PLC v. MRS AMADI ROGE & 4 ORS. (1998) 4 NWLR (Pt. 544) 37 at 44. Learned counsel again submitted that the attention of the lower Court was drawn to these authorities, but were not considered by the Court even though the lower Court has a duty to follow precedent, being one of the foundations of administration of justice based on the rule of Law. Learned Counsel therefore urged this Court to resolve this issue in favor of the Appellant.
?On the part of the Respondents, learned Counsel submitted that they did not deny the status of their employment
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but that what the Respondents have as common binding issue is that, they all retired in the year 2000, and whether the circulars listed in the claim apply to them. Counsel said the mode or time of employment of the respondents is not relevant since the sole issue is interpretation of circulars as they relate to the employees, he therefore submitted that the Respondents may come together and have a unified action and consequential claim. Learned Counsel relied on the decision in UZODINMA v. IZUNASO (No. 2) (2011) 17 NWLR (Pt. 1275) 30 at 75-76 to submit that the issue deals with the interpretation of documents and that originating summons therefore constitutes a proper mode of commencement of the action against the Defendant Appellant.
I think the issue sought to be determined in this instance is whether the Respondents could validly initiate and maintain joint action against the defendant in the instant case. I think the track must not be lost, this aspect of the submission is required to focus on the question whether the Respondents could validly sustain joint action as plaintiffs against the Defendant. Counsel further submitted that the issue before the
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lower Court has nothing to do with the time the Respondents were employed, that the issue is mainly on interpretation of documents.
Learned Counsel for the Respondents further referred this Court to Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000 and submitted that the Respondents may be joined in one action, he submitted that the joint action filed by the Respondents is competent, he also relied on the decision in C.B.N. v. ADEDEJI (2004) 13 NWLR (Pt. 890) 226 at 243. Learned Counsel also referred this Court to the decision in ORUK ANAM LOCAL GOVERNMENT v. IKPA (2003) 12 NWLR (Pt. 834) 558 at 573, to submit that originating summons filed by more than one person is competent even when filed by employees with different contracts of service. It was also contended on behalf of the respondents that, once the method used in commencing an action has brought into focus the real dispute between the contending parties, and the method employed has not resulted in injustice, the lower Court would have jurisdiction to hear and determine the matter particularly where the action relates to interpretation of documents. Learned Counsel
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therefore urged this Court to resolve this issue in favor of the Respondents. The Appellant in this appeal is contending that the action brought by the Respondents jointly and severally is incompetent, while the Respondents contend that, the law allows them to do so, and having done so they are right and the action against the Appellant as defendant is therefore competent.
I carefully examined the originating summons and the affidavit in support. The Affidavit in support is at page 13 of the record of appeal. Part of the affidavit in support sworn to by Emmanuel Sunday Omotusi reads as follows:
“1. I am the 1st Plaintiff in this suit by virtue of which I am familiar with the facts of the suit.
2. That I have the consent of the other plaintiffs in the suit to depose to this affidavit.
3. That all the Plaintiffs were employees of the Defendant having been employed at various times and served in various departments of the Defendant.”
At the Court below, parties canvassed literally the same argument as canvassed on this issue. The learned trial Judge noted this submission at page 55 of the record of appeal where he said as follows:
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“Since we are talking here of 401 separate contracts of employment with NEPA, it was submitted that the parties are badly joined, in law and that since each of the plaintiffs has his own cause of action, they cannot be joined in one suit?”
On whether the action commenced by the Plaintiffs as joint Plaintiffs is competent or not, the learned trial Judge said the action as filed by the Plaintiffs was competent having regard to the provisions of Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000. The learned trial Judge said from pages 68-69 of the record of appeal as follows:
“It is averred in the affidavit filed in support of the originating summons that the plaintiffs are entitled to and ought to be paid the same reviewed pension rates with other pensioners retired under the defendant. It is further averred that the Defendant has however failed to pay the pension rates of the plaintiffs in accordance with the reviews.
I hold therefore that the originating summons has disclosed reasonable cause of action in that it has raised the question affecting the defendant fit to be decided by this Court which question is
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whether the defendant should pay to the Plaintiffs Pension Rates as reviewed by the Federal Government of Nigeria.
Plaintiffs as rightly submitted are competent to commence this proceeding as joint plaintiffs having regard to the Provisions of Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000, which allows persons with the same cause of action to approach the Court as joint Plaintiffs.
In the final analysis, I hold that the Defendant Notice of Preliminary Objection must be dismissed and it is hereby dismissed.”
The learned trial Judge in my humble view clearly stated the settled position of the law, Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000 allows persons with the same cause of action to approach the Court as joint plaintiffs.
In the instant case, the interest of the Respondents is strictly on the interpretation of Government circulars with regards to its application on their terminal entitlements. The law is well settled that where there are no diverse interests of the Plaintiffs in a subject matter of an action, but a common interest, it is more convenient, advantageous cost
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effective, and prudent to have the issue determined in a single representative action than for each of the Plaintiffs to embark on filling his own action to seek for his own relief. See: UKPONG v. COMM. FOR FINANCE (2006) 19 NWLR (Pt. 1013).
Since all the 401 Plaintiffs had common interest at the lower Court. They went to seek for interpretation of Government circulars, SWC/04/104/S.8/25, of 17th May 1999, B.63 216/S.1/X of 6th July 1999. SWC/04/Vol. iv/1011 of 17th May 2000. The interest of the Plaintiffs is strictly to secure judicial interpretation of the circulars. It will not be prudent for each of them to initiate his own suit to secure his own interpretation of the same circular. There is nothing wrong in all the Plaintiffs coming together as joint plaintiffs.
In the decision cited UKPONG v. COMM. FOR FINANCE (supra). ONNONGHEN, JSC said as follows:
“… A single order would therefore be made for the benefit of all the Appellants. I hold the view that the High Court is right in so finding, and that the Court of Appeal was in error when it set aside that finding. I find no diverse interests of the Appellant in the subject
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matter of the appeal, but a common interest, the fundamental issue for determination in the appeal being whether the 1st Respondent has the vires to reassess the Appellants and demand payment of the reassessed tax not being a taxing authority. I hold the view that, it is more convenient to have the issue determined in a single representative action, than for each of the 292 employees to bring separate appeal for the same reliefs.”
It is not in doubt that the lower Court was right in holding that Respondents action was competent, thereby dismissing the Preliminary Objection.
On the whole therefore Appellants appeal lack merit, it is therefore dismissed. The decision of the lower Court dismissing Appellants Preliminary Objection is affirmed.
For the avoidance of doubt, I hold that Respondents joint action filed at the lower Court is competent and it is hereby ordered that trial continues at the lower Court.
Parties shall bear their respective costs.
Other Citations: (2016)LCN/8844(CA)
