Representative Action

1. AN ORDER granting leave to the Claimants herein to bring this action in a representative capacity, for themselves and on behalf of 9.024 KWARA STATE Government accredited to N1.68billion withheld pensions and gratuity arrears;
2. AN ORDER deeming the originating processes filed in representative capacity properly filed and served the necessary filing fees having been paid;
the Kwara State High Court (Coram: E. B. Mohammed, J.) on 20th October, 2008, finding that the application has merit, granted it as prayed. Leave, accordingly, was granted to the Claimants now the respondents herein, to bring this action against the defendants {appellants herein) in a representative capacity on behalf of themselves and on behalf of 9,024 Kwara State accredited Pensioners entitled to N1.68Billion withheld pensions and gratuities arrears”. The originating summons filed on 2nd September, 2008 was, in terms of the motion ex Parte, “deemed properly filed, the necessary filing fees having been paid”.
On 30th October, 2008 the appellants, as defendants, entered a conditional appearance to the suit pursuant to Order 16 Rule 1(1) of the Kwara State High Court (Civil Procedure) Rules. It was filed by Mrs. F. I. Lawal, State Counsel. The defence thereafter did nothing further to articulate their defence. On 14th January, 2009, the Claimants through their counsel, T.O.S. Gbadeyan, through then filed a motion for judgment in terms of their claim as contained in the Originating Summons. This prompted the appellants’ application filed on 23rd January, 2009 praying for extension of time within which to file their counter-affidavit in defence of the Originating Summons. The motion was, on 26th January, 2009, moved and granted. The appellants, as the defendants, were then given up to 2nd February, 2009 to file their counter affidavit and Notice of Preliminary Objection. The appellants, in compliance with the said Order of Court, filed two processes namely: the counter-affidavit and the Notice of Preliminary Objection on 2nd February, 2009.
On 19th February, 2009 when the Court reconvened the appellants, through Mr. Akande, Senior State Counsel, withdrew the notice of preliminary objection filed on 2nd February, 2009. The appellants had on the said date filed a similar notice of preliminary objection. The appellants filed yet another notice of preliminary objection on 23rd February, 2009. On 3rd March, 2009 the Notice of Preliminary Objection filed on 16th February, 2009 was again withdrawn and struck out.
The Notice of Preliminary Objection filed 3rd March, 2009, was argued on the same date grounds, namely:
“i. That the action was statute barred, and
ii. That the claimants, now the respondents herein, lacked locus standi to bring their action in a representative capacity”
In the reserved Ruling delivered on 1st June, 2009 the learned trial Judge, found inter alia;
“On the whole, I find that the Claimants have not proved or established that they have the authorization or authority of substantial number of the 9.024 Pensioners purportedly represented in this case and by the nature of their claim, this (sic) cannot separate or severe their claim thus the suit cannot ensure in their favour hence the defendants’ Preliminary Objection succeeds and it is hereby sustained”.
It is against this decision that the claimants, on 9th June, 2009, lodged their appeal to the Court of Appeal. The Court of Appeal, Ilorin heard the appeal on 19th April, 2010, and in its unanimous decision delivered on 30th June, 2010, it allowed the appeal. On the invitation of the claimants (as the appellants in that Court) to the Court of Appeal to invoke Section 15 of the Court of Appeal Act and decide the Origination Summons on its merits, it proceeded to determining the Originating Summons on its merits. The Court of Appeal (hereinafter referred to as the Court below) at pages 347 and 348 of the Record of Appeal held, and stated thus, in the lead judgment of Sotonye Denton-West, JCA, that was unanimously concurred:
”In the circumstances, l am obliged to grant the prayers of the appellants (claimants) as claimed in their appeal with the proviso, that the payment of the money by the respondents in the sum of N1.68billion should be paid within six months from today 3oth June, 2010. The disbursement should be made to the appellant and to all the 9,024 Kwara State accredited Pensioners entitled to the N1.68billion withheld pensions and gratuities. The disbursement should be supervised by the Accountant-General of Kwara Stare who perhaps could be assisted by National Union of Pensioners Kwara State Chapter with logical conclusion to all the pensioners whose claims arc involved in this appeal.

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