Judgment
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C . (Delivering the Leading Judgment): This is a cross-appeal against the judgment of the Court of Appeal, Lagos Division delivered on 19th July 2004 wherein the Court held that an action commenced in a representative capacity wherein the plaintiffs failed to obtain the leave of Court to sue in that capacity or failed to obtain the authorization of the represented parties, the action enures as it relates to the named initiators alone.
The genesis of the subject matter of this appeal is the rationalization exercise carried out by the appellant between 1996, 1998 and 10th March 2003, purportedly pursuant to a Federal Government directive, which resulted in the redundancy of the 1st-11th Cross-Appellants and over one thousand other staff of the bank, which according to them was in violation of the Appellant’s enabling laws and Articles 4-6 of its staff manual.
Despite representations to various authorities and the setting up of several panels to review the exercise, the exercise was not reversed and the appellant refused to reinstate them.
Consequently, by an Originating Summons filed on 19th May 2003, the 1st-11th respondents “for themselves and on behalf of the over one thousand staff of the Central Bank of Nigeria (CBN) recently rationalized or relieved of their jobs,” sought the following reliefs against the appellant and the Attorney General of the Federation: “a. A Declaration that the 1st respondent being an autonomous legal body is not subject to the Federal Government control in its affairs with its staffs (sic). b.
A Declaration that the Federal Government Directives to the 1st Respondent to embark on rationalization of its staff is wholly violative of the 1st respondent’s contractual relationship with its staffs (sic). c. A Declaration that the 1st Respondent’s rationalization exercise on the “instigation” and “Directive” of the Federal Government between 1996, 1998 and 10th March 2003 is wholly violative of Chapters 4-6 of the 1st respondent’s staff manual. d.
An Order nullifying the purported rationalization exercise conducted by the 1st respondent on “the directives” of the Federal Government (an interloper) who is neither the employer of the applicants nor privy to the contractual relationship existing between the applicants and the 1st respondent. e. An Order directing the 1st respondent to reinstate the applicants immediately to their respective posts without loss of seniority or benefits.”
The Originating Summons was supported by a 24- paragraph affidavit with several exhibits attached thereto and marked Exhibits A, B, C1-C4, D and E1-E10 respectively. Exhibits E1-E10 are some of the redundancy letters issued to the affected staff. The 1st respondent filed a memorandum of conditional appearance on 30/5/2003 and on 30/6/2003 filed a motion seeking to raise a preliminary objection to the suit and an order dismissing the suit. Both parties filed further processes in support of and in opposition to the application with additional documents exhibited to their respective processes.
The preliminary objection was heard on 15/10/2003. In a considered ruling delivered on 5/11/2003, the application was dismissed. Dissatisfied, the appellant appealed to the Court below. In its judgment delivered on 19/7/2004, the appeal was dismissed with an order that the suit be remitted to the trial Court to be heard on its merit.
One of the issues raised in the preliminary objection was that the action was incompetent for failure to seek authorization/leave to sue in a representative capacity on behalf of the unnamed parties. As stated earlier in this judgment, the lower Court held, inter alia that the suit was competent only as regards the named parties and that the outcome could not enure in respect of any of the unnamed parties. The cross appellants have filed the instant cross-appeal to challenge this aspect of the judgment. Its notice of cross-appeal filed on 1/3/17 contains a single ground of appeal.
The main appeal filed by the cross respondent was withdrawn and dismissed on 31/1/22.
In respect of the cross-appeal, Dr. Adekunle Ojo, SAN adopted and relied on the Cross Appellants’ brief filed on 30/6/2007 in urging the Court to allow the cross-appeal. He also relied on a list of additional authorities filed on 11/3/2020. OLADIPO TOLANI ESQ. adopted and relied on the Cross Respondent’s brief filed on 6/7/18 in urging the Court to dismiss the cross-appeal.
The cross appellant’s sole issue for determination is: “Whether, given the special circumstances and facts on record and plethora of decisions of this Honourable Court, the named 11 Applicants/Cross appellants’ action for themselves and on behalf of the slightly over 1000 (One Thousand) unnamed Applicants/Cross-Appellants rationalized staff of the 1st Respondent enures only for the eleven named applicants?”
The cross respondent’s single issue is similar to the cross appellants’ issue. It is therefore not necessary to reproduce it here. I shall proceed to determine the appeal on the cross appellants’ issue.
Sole Issue Learned Senior Counsel for the Cross appellants argued that the part to the decision of the lower Court complained of is not in line with consistent authorities of this Court. He submitted that the facts of this case are on all fours with authorities such as Otapo Vs Sunmonu (1987) 2 NWLR (Pt. 58) 587, where parties have been allowed to sue in a representative capacity with or without written authorization or leave. He set out the circumstances in which this could occur, to wit: a. The existence of numerous persons to be represented; b.
All the Cross-Appellants have the same interest in the subject matter of the suit; c. All the Cross Appellants have the same grievance; d. The eleven named representatives are part of the whole; and e. The reliefs sought are by their nature beneficial to all the persons being represented.
He submitted that the only burden on a plaintiff suing in a representative capacity is to show that they have a common grievance or common interest and it is not mandatory to obtain their consent. He submitted that the action by 11 persons for themselves and for over 1,000 CBN staff is in line with decisions of this Court wherein it has held that an action taken in a representative capacity is competent in respect of not only those who initiated it but also the unnamed persons represented. That both the named parties and those represented are parties to the action.
See: Mbanefo Vs Molokwu (2014) 6 NWLR (Pt. 1403) 377 @ 425 C-D. He submitted that the Court below failed to consider the affidavit evidence and the exhibits annexed thereto, which, in his opinion, clearly demonstrated the common grievance and common interest of the unnamed parties with the eleven cross appellants. He contended further that there is nowhere in the cross respondent’s affidavits where it alleged that it would be prejudiced in any shape or form by the suit as constituted.
He also observed that by its letter dated 3/12/96, addressed to the Secretary to the Government of the Federation, the Cross respondent in stating its reasons for the rationalization, specifically mentioned the 6th cross-appellant (Mr. N.A. Ogunbuyide) and “over 1,000 others”, which was a clear indication that it recognized the named and unnamed parties as being part of the same group with a common interest/grievance.
He submitted that by the combined provisions of Order 12 Rule 1(1) and (7) of the Federal High Court (Civil Procedure) Rules, 2000, a set of named plaintiffs may institute a suit on behalf of other unnamed plaintiffs in a representative capacity if they all have the same grievance, once the pleadings show a representative capacity, as in the instant case. He referred to Ofia Vs Ejem (2006) 5 SC (Pt. 111) 41; Afolabi vs Adekunle (1983) 8 SC 98; Ayinde Vs Akanji (1988) 1 SC 106.
He noted that the endorsement of the Originating Summons clearly shows that the action was brought in a representative capacity and that the averments in the supporting affidavit are to the effect that the named and unnamed parties all share a common grievance.
Learned senior counsel argued that the finding of the lower Court complained of was based on Order 12 Rule 8 of the Federal High Court (Civil Procedure Rules). He submitted that the interpretation of the rule is inaccurate having regard, not only to the interpretation of similar provisions of the Federal High Court Rules by this Court, but also having regard to the use of the word “may” in the said provision, which is permissive and not mandatory.
He noted that Order 12 Rule 8 of the Federal High Court Rules is in pari materia with Order 13 Rule 14 of the Lagos State High Court (Civil Procedure) Rules 1972, which provision was interpreted in Otapo vs Sunmonu (1987) 5 SC 228, to the effect that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, judgment could be entered for or against the party in that capacity even where an amendment to reflect that capacity had not been applied for and obtained. He also referred to Mbanefo Vs Molokwu (supra) @ 411 G-H.
He argued further that the purport of the decision in Otapo Vs Sunmonu is that the provisions of Order 13 Rule 14 of the Lagos State High Court (Civil Procedure) Rules 2000, are permissive and not mandatory.
Relying on the case of: Bankole Vs Dada (2003) 11 NWLR (Pt. 830) 74, he submitted that obtaining leave to sue in a representative capacity is superfluous, as the duty of the plaintiff is to describe his capacity in the writ and to plead that capacity as a material fact in the statement of claim. He referred to: Mozie Vs Mbamalu (2006) 15 NWLR (Pt. 1003) 495 per Tobi, JSC;Jack vs Whyte (2001)3 SC 121.
Learned senior counsel submitted that the authorities of Lawal vs Ariwajoye (2001) 5 NWLR (Pt. 707) 686, Ifekwe vs Madu (2000) 14 NWLR (Pt. 688) and Jack Vs Whyte (supra), relied upon by the lower Court, all support the principle of law enunciated in Otapo Vs Sunmonu (supra) and that the lower Court in line with the principle of stare decisis, ought to have followed those decisions.
On the issue of authorization by the unnamed parties, learned senior counsel referred to Exhibit OA1 attached to the Cross Appellants’ further affidavit at pages 81-82 of the record, which is a letter signed by some officers on behalf of the named and unnamed parties authorizing the named parties to institute the action for themselves and on behalf of all those affected by the rationalization exercise. He noted that neither the cross respondent nor any of the unnamed applicants objected to the letter or challenged its validity.
Conversely, he submitted that by the authority of this Court in Atane & Anor vs Amu (1974) 10 SC 163 @ 168 per Irikefe, JSC, a plaintiff suing in a representative capacity is under no obligation to obtain the consent of others whom he might represent although the position is different in the case of a representative defendant.
Learned counsel submitted further that the cross respondent lacks the locus standi to challenge the authority of the cross appellants to represent those unnamed applicants and that, in any event, having regard to his earlier submissions, the failure to obtain leave/authorization would not vitiate the suit. See: Gov. of Ekiti State Vs Hon. Kola Fakiyesi (2009) LPELR-8353; SPDC Nig. Ltd. vs Edamkue (2009) 14 NWLR (Pt. 1160) 1 @ 27-28 H-E.
He submitted that the unnamed parties in a representative suit have a constitutional right to be heard and urged the Court to protect their right guaranteed by Section 36 of the 1999 Constitution, as amended. See: Otapo Vs Sunmonu (supra).
Learned senior counsel argued that the Court has a duty to do substantial justice and to avoid multiplicity of actions. He submitted that where a party omits to sue in a representative capacity, the Court, suo motu, may order him to amend his processes to reflect that capacity in order to meet the ends of justice. He referred to Bamisile Vs Osasuyi (2007) 9 NWLR (Pt. 1042) 255) (CA), SPDC Nig. Ltd. Vs Edamkue (supra). He urged the Court to resolve the appeal in favour of the cross appellants.
In response to the above submissions, learned counsel for the cross respondents contended that the Court below was correct when it held that the requirement to obtain authorization or leave before suing in a representative capacity is a condition precedent to the commencement of the action on behalf of the unnamed parties and that the effect of failure to obtain such authorization or leave is that only the named parties (or the initiators) can benefit from whatever decision is reached by the Court.
It was his view that the lower Court applied the correct interpretation to Order 12 Rule 8 of the FHC (Civil Procedure) Rules, 2000.
Learned counsel submitted that apart from the bare averment that they sued in a representative capacity, there was nothing before the Court to show the common denominator in the separate and distinct contracts of employment between the cross appellants and the unnamed parties they purported to represent. He argued that the letters of employment of all the unnamed applicants ought to have been exhibited along with evidence that the named applicants were authorized to sue on their behalf.
He conceded the fact that in Otapo Vs Sunmonu (supra), this Court held that failure to obtain authorization to sue in a representative capacity would not vitiate the action. He however argued that the facts and circumstances of Otapo Vs Sunmonu (supra) are distinguishable from the facts of the instant case because Otapo’s case involved a Chieftaincy dispute pertaining to all the members of a ruling house who had a common interest and that their pleadings and the evidence led demonstrated the common interest and grievance of the named parties and the unnamed parties they represented.
He asserted that the instant case presents a different scenario because there is nothing to show that the parties purportedly being represented actually exist. He noted that the letters of rationalization of the over one thousand staff were not placed before the Court. He submitted that the cases of: Otapo Vs Sunmonu (supra); Afolabi Vs Adekunle (Supra); and Ayinde Vs Akanji (Supra) were all fought on the basis of pleadings and evidence establishing their common interest, while the instant case is bereft of same. He urged the Court to dismiss the cross-appeal.
A representative action is an action brought or defended by a named person or some named persons on behalf of a group of persons who have the same interest or grievance. A judgment given in the matter binds the entire group represented, and not just the persons named on the originating process. The rationale for adopting this approach was stated by this Court in the case of: Atanda Vs Olanrewaju (1988) 4 NWLR (Pt. 89) 394 @ 409-407 G-A, per Oputa, JSC thus: “Our Rules of Court in the various jurisdictions, specifically provided for this.
And it is a salutary and common sense provision for where the parties are very numerous, it will be extremely cumbersome and irritatingly frustrating if everybody interested is made a named party. The Court will find it difficult to come to justice by insisting that everyone interested should be named on the writ as a party. For the sake of convenience, our Courts therefore approve of representative actions.
Thus, given a common interest or a common grievance, a representative action is in order if the relief sought is in its nature beneficial to all whom the named plaintiffs proposed to represent.” As stated in the authority cited above, various jurisdictions have enacted their own rules to accommodate representative actions.
Order 12 Rules 7 and 8 of the Federal High Court (Civil Procedure) Rules, 2000 provide: “Rule 7: (1) If the plaintiff sues, or any defendant counterclaims in any representative capacity, it shall be so expressed on the writ. (2) The Court may order any of the persons represented to be made parties either in lieu of or in addition to the previous existing parties.
Rule 8: Where more persons than one have the same interest in one suit, one or more may, with the approval of the Court, be authorised by the other persons interested to sue or to defend the suit for the benefit of or on behalf all parties so interested.” As rightly submitted by learned counsel for the cross appellants, the fundamental requirements for a suit brought or defended in a representative capacity are: 1) Those represented must have a common interest/common grievance and 2) The relief sought must in its nature be beneficial to all those whom the plaintiff or defendant is representing.
See: Ayinde vs Akanji (1988) 1 SC 106; Ogamioba & Ors Vs Chief Oghene & Ors (1961) 1 ALL NLR 59. It is to be noted that in the provisions of Order 12 Rule 8 reproduced above, the word used is “may,” which suggests that the provisions is permissive and not mandatory. It is a settled principle of interpretation of statues that words must be given their natural and ordinary meaning, unless to do so would lead to absurdity. See:Ibrahim Vs Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo Vs Alamu (1987) 3 NWLR (Pt. 61) 377; Agbaje Vs Fashola (2008) ALL FWLR (Pt. 443) 1302.
Learned counsel for the respondent and indeed the Court below gave a strict interpretation to Order 12 Rule 8. By its motion on notice filed on 26/6/2003 for the dismissal or striking out of the suit at the trial Court, one of the grounds for the application was that: “There is neither authorisation nor approval of this Honourable Court to commence the present suit which is purported to be a representative action.”
The 1st defendant (now cross respondent) argued that the plaintiffs (now cross appellants) failed to discharge the burden placed on them by law to show not only that they were authorised by over 1,000 rationalized staff of the bank to institute the action, but also, that they had sought and obtained leave of the Court to sue in that capacity.
Although they were served with a further counter affidavit with an exhibit attached thereto showing such authorisation, the 1st defendant (cross-appellant herein) urged the Court to disregard it, having been filed after the motion challenging the suit was filed and because there was no affidavit by the named plaintiffs stating that they had been so authorised. The trial Court rejected the argument of the 1st defendant and held that the failure to seek authorisation/leave to sue in a representative capacity would not vitiate the action.
It is pertinent to note that the position taken by the 1st defendant/cross-respondent was that the suit was incompetent ab initio for failure to seek authorisation/leave to sue in a representative capacity. The Court below agreed that the suit was not vitiated by the said failure but went on to hold that having failed to obtain authorisation/leave to sue in a representative capacity, only the named plaintiffs would be affected by the eventual outcome of the suit.
In effect, although it held that the suit was competent as far as the named plaintiffs were concerned, it took a hard stance on the failure to obtain authorisation/leave as it relates to the unnamed applicants.
It has been held by this Court that representative actions are a matter of convenience, to avoid multiplicity of actions and to prevent a situation where a case becomes cumbersome and difficult to adjudicate upon due to the sheer number of parties and voluminous processes that would necessarily be filed. For that reason, the Courts adopt a more flexible approach.
In Otapo Vs Sunmonu (1987) LPELR-2822 (SC) @ 27 – E-F, it was held as follows: “This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity, the trial Court can justifiably enter judgment for or against the party in that capacity.” See also: Jack Vs Whyte (2001) 6 NWLR (Pt. 709) 266 @ 275 D-E; (2001) LPELR-1586 (SC) @ 10-11 E-A, per Uthman Mohammed, JSC, where His Lordship stated thus: “I agree that where a representative order would have been granted had it been asked for, failure to obtain it will not vitiate the action. …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 this 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 a judgment on a bare objection of failure to obtain the approval of the Court.
See Wiri Vs Wuche & Ors, (1980) 1 SC 1.” (Underlining mine) See also: Busari Vs Oseni (1992) 4 NWLR (Pt. 237) 557 @ 582; Durbar Hotel Plc Vs Ityough (2011) 9 NWLR (Pt. 1251) 41 @ 55 E-H per Okoro, JCA (as he then was). To further buttress the position in Jack Vs Whyte (supra), I refer to the dictum of Ogbuagu, JSC in Salisu & Ors.
Vs Odumade & Ors. (2010) LPELR-2995 (SC); (2010) 6 NWLR (Pt. 1190) 228 @ 241 C-E, to wit: “It is now firmly settled that even the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action… In fact, once pleadings and evidence establish conclusively a representative capacity, a trial Court will be entitled to enter judgment for and against the party in that capacity, even if an amendment to reflect that capacity had not been applied for and obtained.
It will be otherwise if the case is not made out in a representative capacity… a representative action is seen and considered as an action brought by the body of persons represented rather than the named plaintiff only.” (Underlining mine)
In the instant case, the cross appellants sued “for themselves and on behalf of the over one thousand staff of the CBN recently rationalized or relieved of their job.”
Paragraphs 3, 4, 5, 6, 7, 8, 16, 22 and 23 of the affidavit in support of the Originating Summons are instructive as to the common interest and common grievance of the named and unnamed applicants. The applicants averred thus: “3. That the Applicants who are all former staff of the 1st Respondent lost their job through rationalization carried out by the 1st Respondent on the directives of the Federal Government. 4.
That all the Applicants have a common grievance interest and issue, hence we are coming in a representative capacity for and on behalf of the over 1,000 former employees of the 1st Respondent that were sent packing in a swoop. 5. That sometime between 1996 and March 2003, the 1st Respondent embarked upon various rationalization exercises at the instigation and directives of the Federal Government. 6. That this rationalization from 1996-2003 is a continuous process, even till date. 7.
That the Applicants have jointly brought this action because it not only raises a common question of law and/or fact (i.e. Rationalization of the Applicants’ employment in a swoop by the Respondents) but also the question of the exercise (Rationalization) complying with the relevant legislation setting up the 1st Respondent. 8. That the Applicants in coming together to pursue their common claim and grievance will save time and will not in any way prejudice the Respondent. 16.
That the directives by the Federal Government to the 1st Respondent as revealed in Exhibit A above to the effect that the 1st Respondent should embark on rationalization of its staff is strange to the Applicants terms of employment with the 1st Respondent and also strange to the 1st Respondent’s enabling laws, 22. The Honourable Court is therefore called upon to invalidate the said rationalization exercise conducted by the 1st Respondent between 1996-2003 being a violation of the existing laws governing the 1st Respondent. 23.
That the Applicants therefore seek the reversal of the rationalization exercise and plead with the Court to reinstate them with immediate effect without loss of seniority and/or other benefits.”
In paragraph 4 of their further counter affidavit to the 1st defendant/cross respondent’s motion, it was averred: “4. That a further denial of paragraph 8 of the Applicant’s affidavit in support, on the 28/4/2003 majority of members of the rationalized staffers of the 1st respondent appointed the applicants to represent them in this suit. Attached and marked Exhibit OA1 is a copy of the letter to our solicitor to that effect.
Exhibit OA1 is a letter addressed to the applicants’/cross appellants’ solicitor with the heading “Re: Resolution Authorising the Commencement of Legal Action.” It reads as follows: “At the monthly national general meeting of the Central Bank of Nigeria (CBN) workers who were unjustly and prematurely rationalized in 1996 and 1998 on Saturday, April 26th, 2008 at the above address and attended by representatives of the following branches or outstations- Ibadan, Abeokuta, Benin, Ilorin, Jos, Minna, Kaduna, Kano, Enugu, Port-Harcourt, Abuja, Akure and the host branch Lagos, the following resolutions were unanimously made. 1.
That after all pleas from us and some other institutions like the National Assembly, the Nigeria Labour Congress (NLC), the National Union of Bankers and Insurance Employees (NUBIE), some important traditional rulers in the country, the Primate of Nigeria Anglican Communion, Most Rev. Dr. J.P. Akinola, retired Bishop Bolanle Gbonigi and other to the CBN Management appeared to have fallen on deaf ears, you are hereby mandated to immediately commence preparation for the filing of a legal suit on behalf of all of us – the slightly over 1,000 (one thousand) people affected. 2.
That you should ensure that the suit which should be in a representative capacity is filed before the end of May, 2003. 3. That the slightly over 1,000 (one thousand) of us that are affected have nominated and mandated the following 11 (eleven people) to sue on our behalf: 1. Mr. Olasupo Adedeji – National Co-ordinator 2. Mr. Chimezie C Ahaneku – Deputy Co-ordinator 3. Mr. GA, Nnamdi Osaji – Abuja Branch Representative 4. Mr. B.S.C. Igwebuike – Lagos 5. Mr. P.O. Olubowale – Benin Branch Representative 6. Mr. N.A. Ogunbuyide – Abuja Branch 7. Mrs. Pat Ikem – Abuja Branch 8.
Dr. (Miss) Joyce Ukaigwe – Lagos 9. Mr. Wilson Onyefunazua – General Secretary 10. Mr. R.O. Balogun – Lagos 11. Mr. S.E.A. Ahirima – Port Harcourt Branch Representative 4. That we shall fully discharge our obligations as regards the agreement we had earlier reached with you in respect of your legal representation. Signed: OLASUPO ADEDEJI National Co-ordinator/Chairman CHIMEZIE C. AHANEKU Deputy Co-ordinator W. ONYEFUNAZUA General Secretary For and on behalf of all those affected.”
In my considered view, the title of the suit along with the averments in the supporting affidavit and further counter-affidavit, which, in a suit commenced by Originating Summons, constitutes the evidence in the case, clearly show the representative capacity in which the suit was brought, the common interest and grievance of the named and unnamed applicants and the fact that the reliefs sought will be of benefit to all of them. Thus, on the authorities referred to above, the unnamed applicants would be equally bound by the decision in the case as the named applicants.
The Court below, with respect, therefore erred when it held that the judgment in the suit would enure for the named applicants alone.
Learned counsel for the cross respondent has argued that there is no common interest between the named and unnamed applicants because they have individual contracts of employment with the cross respondent. I respectfully disagree with him. Even though they might have had separate contracts of employment with the cross respondent, it is their contention that the rationalization exercise was done in a blanket manner and across the board and therefore the effect of the exercise on all of them was the same.
Their common grievance/interest is therefore their redundancy and the restoration of their jobs.
It is pertinent to note that since the inception of the suit, there is nothing to show that any of those represented has challenged the authority of the named applicants to represent them. In the case of: Nta Vs Anigbo & Ors.(1972) LPELR-2069 (SC) @ 19-20 C-C, this Court held, inter alia: “If those named care to do so, they may ask for a representation order. If they do not, the Court is entitled to give judgment according to the evidence and the nature of the case.
If there are parties aggrieved at being caught within the case when they were not by name made parties thereto, they have a right to appeal under our Constitution…” The effect of all that I have been saying in the course of this judgment is that having indicated in the title of the suit and its accompanying processes that the action was filed in a representative capacity, any judgment delivered in the suit will enure to both the named and unnamed applicants.
In other words, even though leave to sue in a representative capacity was not obtained, as long as the trial Court is satisfied from the material before it that they sued in that capacity, it would be entitled to enter judgment for or against them in that capacity and the unnamed applicants would be bound by it.
The sole issue in this appeal is accordingly resolved in favour of the cross appellants. The appeal has merit and it is hereby allowed. The parties shall bear their respective costs.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Kudirat Kekere-Ekun JSC and to register the support in the reasonings from which the decision emanated, I shall make some comments.
This cross-appeal is against a part of the decision of the Court of Appeal, Lagos Division or Court below or lower Court, Coram: J.O. Ogebe, P.O. Aderemi and M.D. Muhammed JJCA (as they then were). The trial Federal High Court was presided by C.P.N. Senlong J. which delivered on 9th July, 2004 wherein the lower Court dismissed the appeal and remitted same to the trial Court to hear and determine the matter on its merit.
INTRODUCTION The Cross Appellants’ appeal to this Court originated from a suit commenced by way of Originating Summons dated 16th May, 2003 but filed on 19th May 2003. The class action was filed by eleven named Applicants for themselves and in a representative capacity on behalf of over 1000 (one thousand) other rationalised staff of the 1st Respondent/Appellant praying for the following orders: a. A Declaration that the 1st Respondent being an autonomous legal body is not subject to the Federal Government control in its affairs with its staff. b.
A Declaration that the Federal Government directives to the 1st Respondent to embark on rationalization of its staff is wholly violative of the 1st Respondent’s contractual relationship with its staff c. A Declaration that the 1st Respondent rationalization exercise on the instigation and Directive of the Federal Government between 1996, 1998 and 10th of March, 2003 is wholly violative of chapters 4-6 of the 1st Respondent’s Staff Manual d.
AN ORDER nullifying the purported rationalization exercise conducted by the 1st Respondent on the directives of the Federal Government (an interloper) who is neither the employers of the Applicants nor a privy to the contractual relationship existing between the Applicants and the 1st Respondent. e. An Order directing the 1st Respondent to reinstate the Applicants immediately to their respective posts without loss of seniority or benefits.
The Summons was supported by a twenty-four (24) paragraph affidavit deposed to by the 1st Cross-Appellant (Mr. Olasupo Adedeji) with the following documents attached as exhibits: a. 1st Respondent’s letter dated 03/12/1996 to the secretary to the Government of the Federation acknowledging that the 1st Respondent had carried out and/or complied with the Federal Government aforesaid directive on the rationalization Exhibit A b. 1st Respondent’s internal memo dated 10/03/2003 (Exhibit B); c.
Letter dated 22/10/2001 addressed to the Chairman of the Rationalization Staff Review Committee Exhibit C1); d. Letter dated 22/10/2001 by the Secretary-General of the Nigeria Labour Congress to the Government of the 1st Respondent (Exhibit C2); e. Letter dated 02/08/2000 by the deputy Speaker of the House of Representatives (Exhibit C3) f. Letter dated 2/7/2002 by Senator O. Durojaiye to the Governor of the 1st Respondent (Exhibit C4); g. The 1st Respondent’s Staff Manual (Exhibit D) and h. Various letters to the Appellants in respect of the rationalization (Exhibit E1-E10)
On 30th May, 2003, the 1st Respondent/Appellant filed a memorandum by which she entered conditional appearance in the suit. Subsequently, she brought a Motion dated 25th June 2003 filed on 30th June 2003, by which she sought two orders: (i) leave to raise a preliminary objection to the suit, and (ii) an order dismissing or striking out the suit. The 1st Respondent/Appellant relied on five (5) grounds.
The motion was supported by a sixteen (16) paragraph affidavit (filed on the same 30th June 2003) deposed to by one Christopher Eyisanmi, who at that time was an Assistant Director in the Legal Services Department of the 1st Respondent/Appellant Bank.
In response to the 1st Respondent’s preliminary objection, the cross appellants filed a twelve (12) paragraph counter-affidavit dated and filed on 15th July 2003 deposed to by the same 1st cross-appellant with another annexure attached to it as Exhibit Q.
The 1st Respondent/Appellant Bank filed a Reply to the Counter-Affidavit on the 13th day of October, 2003 and attached eight (8) additional exhibits which comprised letters of Rationalisation issued on the 1st, 4th, 5th, 6th, 7th, 8th, 9th and 11th Appellants (as Exhibits CE1, CE2, CE3, CE4, CE5, CE6, CE7 and CE8 respectively).
On the 14th day of October 2003, the Plaintiffs/Cross-Appellants filed a further and better affidavit of nine (9) paragraphs dated the same day with the following annexures: a copy of letter of resolution authorising appellants to commence action is a representative capacity dated 28th April 2003 (Exhibit OA1) copy of the letter dated 3/12/1996 from the Director of Personnel of the 1st respondent addressed to the Secretary to the Government of the Federation Exhibit OA and a photocopy of the Vanguard Newspaper of 16th July 1996 – front page (Exhibit OA3)
The application for preliminary objection was heard on 15th October 2003 and the ruling by Justice C.P.N. Senlong was delivered on 5/11/2003. The trial Court ruled on all five grounds against the Defendant/Appellant. Dissatisfied with the ruling of the trial Judge, the 1st Defendant/Appellant appealed to the Court of Appeal on those grounds. In a judgment delivered on 19th July 2004, the Court of Appeal refused all the grounds of the appeal. Dissatisfied with the decision of the Appeal Court, the 1st Respondent/Appellant appealed to this Court by a Notice of Appeal filed on 24/9/2004.
The Plaintiffs/Cross-Appellant being also dissatisfied with the portion of the decision of the Court of Appeal which held that the case enures only for the benefit of the eleven named plaintiffs has, pursuant to the order of this Court of 15th February 2017, filed this cross-appeal to ventilate their position on that portion of the decision. See pages 198 to 201 of the Records.
STATEMENT OF FACTS The Cross-Appellants were all members of staff of the Central Bank of Nigeria (1st Defendant/Respondent). Between 1996 and 2003 the Federal Government (2nd Respondent) gave various written directives to the 1st Respondent to terminate the appointments of some of its staff, most of whom are the Appellants. In compliance with these directives, the 1st Respondent/AppeIIant terminated the appellants’ appointments – over 1,000 appointments in all.
In a letter to the 2nd Respondent dated 3rd December, 1996, the 1st Respondent claimed that the reason for laying-off the named Cross-Appellants and over 1,000 unnamed Applicant/Cross-appellants in what it called “rationalization exercise carried out by the Bank in compliance with the Federal Government directives.” The 1st Respondent also claimed that “when the number rationalized did not meet the expectation of Government, the Bank was left with no other alternative other than to invoke the provisions of Chapters 3(ii) and 4(i) of the Staff Manual (Exhibit D)”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Aggrieved by the respondent’s actions, the named Applicant/cross-appellants brought a representative action for themselves and on behalf of the over 1,000 other rationalized staff of the Bank (unnamed Applicant/Cross-appellants) by way of an originating summons, wherein they sought the Court to determine three (3) issues, to wit; a. Whether the 1st Defendant/Respondent (the Central Bank of Nigeria CBN) under its enabling laws i e the CBN Act, Cap 47, LFN, 1990; the CBN Decree of 1991 and the CBN (Amendment) Decree No. 3 of 1997, is an autonomous legal body, and if Yes. b.
Whether the Federal Government is competent to direct the 1st Respondent (CBN) on how to manage its staff affairs? And if the answer is No. c. Whether the rationalization exercise embarked upon by the 1st Respondent (CBN) between 1996, 1998 and 2003 and the review panel’s subsequent recommendations of the 10th March 2003 on the instigation of the Federal Government is not a violation of the contractual relationship between the 1st Respondent (as employers) and the Applicants (the rationalized staff)?
The Appellant by a preliminary objection dated 25th June 2003 but filed on 30th June 2003 among other grounds challenged the competence of the suit on the basis that there is neither authorization nor approval of the trial Court to commence the suit in a representative capacity amongst other grounds. The application for preliminary objection was heard on 15th October 2003 and the ruling by Justice C.P.N. Senlong was delivered on 5/11/2003.
The trial Court ruled on all five grounds against the 1st defendant/Appellant dissatisfied with the ruling of the trial Judge, the 1st Defendant/Appellant appealed to the Court of Appeal on those grounds. In a judgment delivered on 19th July 2004, the Court of Appeal refused all the grounds of the appeal but held that the suit enures for benefit of only the named eleven Plaintiffs.
Learned counsel for the cross-appellant, Dr. Adekunle Ojo SAN adopted the brief of argument filed on 30/6/201 in which he distilled a single issue for determination, viz: Whether, given the special circumstances and facts on record and plethora of decisions of this honourable Court, the named 11 Applicant/Cross-Appellants’ action for themselves and on behalf of the slightly over 1,000 (one thousand) unnamed Applicants/Cross-Appellants rationalized staff of the 1st Respondent/Appellant enures only for the eleven named applicants?
Learned counsel for the cross-respondent, Oladipo Tolani Esq adopted the brief of argument filed on 6/7/2018 and deemed filed on 8/4/2019 and he has crafted a sole issue thus: Whether this suit inures in favour of only the eleven named plaintiffs (now Cross-Appellants) and not for the benefit of other unnamed persons in the absence of any authorisation and/or leave to sue in a representative capacity (Ground one).
I shall make use of the issue crafted by the cross-respondent as it is simply done.
SOLE ISSUE Whether this suit inures in favour only of the eleven named plaintiffs (now cross appellants) and not for the benefit of other unnamed persons in the absence of any authorization and/or leave to sue in a representative capacity.
Advancing the position espoused by the cross-appellant, learned Senior Counsel contended that the action by eleven persons for themselves and for over 1,000 CBN staff is in line with the decisions of the Supreme Court which in plethora of cases have held an action taken in a representative capacity is competent in respect of not only its initiates alone because leave and authorization were not obtained by the initiators of the suit.
That from the wordings of Order 12 of the Federal High Court (Civil Procedure) Rules, applicants can sue in a representative capacity hence the action was brought by the eleven named Applicant/cross-appellants for themselves and the over 1000 cross-appellants unnamed is in order. He cited Afolabi v. Adekunle (1983) 8 SC 98 etc.
For the cross-appellant, it was contended that the position taken by the Court below was against the doctrine of stare decisis. He cited Tejumade A. Clement & Ors v Bridget J. Iwuanyanwu anor(1989) 3 NWLR (pt.107) 39 etc.
Learned counsel for the cross-respondent submitted that there is nothing to show that the persons being purportedly represented exist in the first place.
On the capacity of the 11 named appellants to represent the unnamed applicants/cross-appellants, the Court below stated as follows: ‘The fact that the Respondents had not been authorized by such others on whose behalf they also claimed to have taken out the originating summons against the Appellant is beyond dispute. That the trial Court had not granted respondents leave to pursue their claim on behalf of others is a settled fact as well.’
Order 12 Rule 8 of the Federal High Court …Civil Procedure Rules 2000 provides ‘Where more persons than one have the same interest in one suit, one or more of them may with the approval of the Court be authorized by the other persons interested to sue or to defend the suit for the benefit of all the parties so interested’
On the capacity of the 11 named appellants to represent the unnamed applicants/cross appellants, the Court below stated as follow: “The foregoing provision must be given its plain effect. See Odu’a Investment Ltd v. Talabi (1997) 10 NWLR (PT.523)1 SC and O.A.U. Ile Ife v Oliyide & Sons Ltd (2001) 7 NWLR (pt.712) 456.”
By the provision, one or more persons may commence an action for themselves and on behalf of others only if authorized by others and with the leave of the Court. The lower Court in its ruling did ask the pertinent question. ‘Does the lack of the Court’s approval or authorization by person interested in the action render the action incompetent? The Court’s answer in the negative is unassailable, The Court’s further reliance in its interpretative effort on the decisions of the Court in Lawal v. Ariwajoye l (2001)5 NWLR (Pt.707) 686, at 702 and Ifekwe V.
Madu (2000) 14 NWLR (Pt.688) 459 at 472 and the Supreme Court’s decision in Jack v. Whyte (2001) 6 NWLR (Pt.709) 266 at 275 is apposite. In these decisions, the two Courts have held that failure to obtain leave of Court or authorization of others will not vitiate the action. An action so commenced remains competent in respect to its initiates alone.
Because of the leave and authorization which the rule of Court had made a condition precedent to the commencement of the action in a representative capacity which leave and authorization had not been obtained by the initiators of the suit such the Respondents in the instant case, the action endures (sic) as it related to the initiators only, This conclusion resolves Appellants… issue against it but in his favour of the Respondents.” See pages 184 and 185 of the records stated.
The lower Court further held thus: “I agree with learned counsel for cross-appellants that the position of the Court below is unknown to law. It is held per incuriam and no Court of law is bound to follow it. Following such decision cannot be in the interest of the established principle of stare decisis. NGWO & ORS u MONYE & ORS (1970) All N.L.R 94. The cases relied upon by the Court below, to wit, Lawal v. Ariwajoye 1 (2001) 5 NWLR (Pt.707) 686, at 702 and Ifekwe V. Madu (2000) 14 NWLR (Pt.688) 459 at 472 and Supreme Court’s decision in Jack V.
Whyte (2001) 6 NWLR (Pt.709) 266 do not support the decision of the Court below that when leave of the Court is not obtained in a representative action enures only for the benefit of the named parties.”
It is noted that the observation of the lower Court was not canvassed by any of the parties and contrasts with the conclusion the same Court reached when it resolved the issue of misjoinder of the parties in favour of the cross-appellants.
Again to be said is that the decision of the Court below negates the oft cited case of Otapo v Sunmonu (1987) 2 NWLR (pt.58) 587 which judicial authority has been followed in a long line of other decisions of the Court of Appeal and Supreme Court.
To be clear, the facts and circumstances of this appeal are on all fours with the cases where parties are allowed by law to sue, in a representative capacity with or without leave and written authorisation for the following reasons: a. There are numerous persons on the side to be presented; b. All the Applicant/Cross-Appellants have the same interest in the suit which interest are joint and several; c. All of the Cross-Appellants have the same grievance; d The eleven named representatives are part of the whole; and e.
The reliefs sought are by their very nature beneficial to all the persons being represented. Taking up an action in a representative capacity has come to stay in our legal lexicon in this part of the clime. A representative action or a class suit/action is a lawsuit where a group of people in similar circumstances or class sues another party.
In such a representative action both the named plaintiff and those represented are parties to the action. It follows that the action by eleven persons for themselves and for over 1000 CBN staff is in line with the decisions of the Supreme Court which plethora of cases have held that an action taken in a representative capacity is competent in respect of not only its initiates alone because leave and authorisation were not obtained by the initiators of the suit.
It is a settled position of the law that the only burden cast upon the Plaintiffs in a representative action is to show that they have common interest or a common grievances and such a plaintiff is not bound to obtain the consent of others whom he might claim to represent.
The learned Justices of the Court of Appeal failed to consider the evidence on the records of the Court which showed conspicuously the common interest amongst the Cross-Appellants and the unnamed parties that were in a swoop rationalised by the 1st Respondent, else the Court would have come to a different conclusion.
The cross-appellants, the named and the unnamed Plaintiffs, who were affected in one swoop, have always acted together in relating with the Appellant and the main grouse, which is common to the represented and the representatives, is that the class rationalisation carried out by the Appellant is illegal and void.
The fact that the Cross-Appellants have common grievances and have all along pursued them together are highlighted in the following ways; i. The Originating Summons and subsequent processes state that the named eleven plaintiffs sue for themselves and on behalf of over 1000 (one thousand staff) of the Central Bank recently rationalized or relieved of their job). ii. Paragraphs 4, 7 and 12 of the Affidavit in support of the Originating Summons dated 19th May 2003 also attest to this. iii. Paragraphs 2 and 4 of the further counter affidavit to 1st Respondent Motion of 25th June 2003 iv.
At pages 12 to 19 of the records is the joint input of the Applicants. v. The Appellant admitted in her letter 3/12/1996 (exhibit ‘A’ of the Originating Summons see pages 8 and 9 of the records) that there was a common grouse in all the cross-appellants, named and unnamed in the letter, the Appellant states: “The reason for the laying off Mr N.A. Ogunbuyide and over 1000 (one thousand) others was subsequent to the staff rationalisation exercise carried out by the Bank in compliance with the Federal Government directive”. vi.
The Cross-Appellants were target of a continuous exercise known as Rationalization exercise’, See the rationalization letters at pages 71-78 of the Record. vii. The rationalization letters exhibited before the trial Court comprised some of the rationalization letters issued to some of the unnamed Applicant/Cross- Appellants. The letters in respect of other unnamed Cross-Appellants such as A.S Sam, S Enwesi, K.A Lawal, S.A Ogun, J.E. Okoguale and G.S.O Ojo were also exhibited. viii.
There was actually a letter dated 28th April 2003 written by the plaintiffs/Cross-Appellants (named and unnamed) authorising the action. The letter was attached to the further counter affidavit filed on 14/10/2003. See pages 81 of the records. The Cross- Appellants are known to the Appellant and they acknowledge the cross-appellants as a group of persons with a common interest. The Appellant/1st Respondent and the 2nd respondent were not in doubt about the number of Plaintiffs and the fact that they are being represented by their named representatives.
In actual fact, the Respondents never at any time during the trial claimed that they would be prejudiced in any form. The records portray the following: a. 1st Respondent’s letter dated December 3rd, 1996 to the 6th Appellant which clearly stated that the reason for its rationalization of Mr. N.A Ogunbuyide (the sixth cross-Appellant) and over 1000 CBN workers (which included the Cross-Appellants) was in compliance with the directive of the Federal Government of Nigeria. See Pages 7 & 8 of the Record of Appeal). b.
Many of the correspondences on records are certain about the plaintiffs both named and unnamed,
A perusal of the wordings of Order 12 of the Federal High Court (Civil Procedure) Rules, applicants can sue in representative capacity hence the action was brought by the eleven named Applicant/Cross-Appellants for themselves and the over 1,000 Cross-Appellants unnamed in order.
The relevant provisions of the Federal High Court (Civil Procedure) Rules to this appeal are: Order 12 Rule 1(1) of Federal High Court Rules which provides : “All persons may be joined in one action as plaintiffs in whom any right or relief (in respect of or arising out of the same transactions or in a series of transactions) is alleged to exist whether jointly, severally or in the alternative, where such persons brought separate actions, any common question of law or fact would arise and judgment may be given for such one or more of the plaintiffs and may be found to be entitled to relief, for such relief and he or they may be entitled to, without any amendment ” Order 12 Rule 7 (1) If the plaintiff sues, or any defendant counter-claims in any representative capacity, it shall be so expressed on the writ. (2) The Court may order any of the persons represented to be made parties in lieu of, or in addition to the previously existing parties.
Order 12 Rule 8 Where more persons than one have same interest in one suit, one or more may, with the approval of the Court, be authorised by the other persons interested to sue or to defend the suit for the benefit of or on behalf of all parties so interested. By the combined provisions of Order 12 Rules 1(1) and 7 of the Federal High Court (Civil Procedure) Rules 2000, a set of named plaintiffs are allowed to institute an action for themselves and on behalf of other unnamed Plaintiffs in a representative capacity if all of them have same grievances once pleadings show representative capacity as in this appeal.
See the cases of Ofia v. Ejem (2006)5 SC (Pt. III) 41 (SC), AFOLABI v. ADEKUNLE (1083)8 SC 98. This Court in the case of Ayinde v Akanji (1988)1 S.C 106 Craig J.S.C has listed the fundamental principle which governs suits brought in a representative capacity thus: “In the case of Ogamioba & Ors, Vs. Chief Oghene & Ors (1961)1 All N.L.R 59 the Federal Supreme Court held that the fundamental principle which governs suits brought in a representative capacity is that: 1. Those represented must have a common interest and a common grievance and 2.
The relief sought must in its nature be beneficial to all those whom the plaintiff is representing.”
In my humble view, the cross-appellants herein endorsed the Originating Summons to the effect that they are suing in representative capacity and they also pleaded facts that they have common grievance, which is to challenge the premature mass ‘rationalization exercise’ carried out by the Appellant/1st Respondent on the directive of the 2nd Respondent.
The learned trial Judge and the Court below from all indications decided based on Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rules 2000 that the case of the appellants falls to the benefits of the 11 named plaintiffs because the leave of the trial Court was not first obtained even through the unnamed plaintiffs had authorised the suit as in the case in hand.
In the light of the previous decisions of this Court and interpretation of similar provision in High Court Rules, the interpretations of the Order 12 Rule 8 of the Federal High Court Civil Procedure Rules by the Court below in this matter is erroneous.
Order 12 Rule 8 of the Federal High Court Civil Procedure Rules 2000 having used the word ‘may’ is permissive and not mandatory. Hence it is not a must that the named plaintiffs suing for themselves and unnamed plaintiffs in a Class suit obtain the leave of the Court before suing. The provisions of Order 12 Rule 8 which is the relevant law in this appeal is in pari materia with Order 13 Rule 14 of Lagos State High Court (Civil Procedure) Rules 1972.
It reads:- Where more persons than one have the same interest in one suit, one or more of such persons may with the or approval of the Court, be authorised by the other persons interested to sue or to defend such suit, for the benefit of and on behalf of all parties so interested. The provision of the High Court of Lagos Rules were interpreted in the case of Otapo v Sunmonu (1987) 5 SC 228 as follows: “The pleadings and the proceedings in the trial Court below show that the action was filed and prosecuted to judgment in a representative capacity.
It is true that in keeping with Order 13 Rule 14 that it is more elegant for a plaintiff suing in a representative capacity if he desires leave to sue in that capacity to make an application simpliciter seeking leave to sue in that capacity. Unlike the provision of Order 3 Rule 2(1), the provision of Order 13 Rule 14 is couched not in mandatory but in permissive terms.
Again this Court further held: “This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial Court can justifiably enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for the obtained.” It would be otherwise if the case is not made out in a representative capacity. Onwunala Ndidi and Onwunalu v. Osademe (197) 1 ALL NLR 14 at 16.
As judgment in the instant appeal was given in favour of the plaintiff by the trial Court, in a representative capacity, it is for the benefit of not only the plaintiff, Alhaji Chief Yekini Otapo alone but also for all represented parties.” This Court in the same case of Otapo v Summonu (supra) per Uwais, JSC as he then was further held: “In the instant case, the action was described in the writ of summons as having been brought in a representative capacity.
I have also pointed out that averments in paragraph 1 of the amended Statement of claim that Plaintiff brought the action in a representative capacity. The writ of summons complied with Order 3 Rule 2(1) of the High Court of Lagos State. The trial Judge was right therefore regarding the action which was brought and fought throughout in a representative capacity as a representative action – See Lediju v. Odulaja 17 NLR.15 Afolabi v. Adekunle (1983) 8 S.C 98 Dokubo V. Bob-Manuel (1967) 1 All NLR.113 Ayeni v. Sowemimo (1982) 5 SC 60”.
The Supreme Court in the same Otapo v Summonu held further thus: “The West African Court of Appeal in Divisional Chief Gbogbonolulu v. Head Chief Hodo (1941) 7 WACA 164 held that it is the duty of the Courts to aim at doing substantial justice and therefore where necessary to make any formal amendment to reflect the capacity in which parties sue. This Court has in many cases decided that it will not disturb the capacity in which parties sued or are sued even where they failed to obtain an order of the Court enabling them sue or defend in that capacity; Afolabi v.
Adekunle (1983)2 SCNLR 141 and 154. Significantly the learned Justices in Otapo v Sunmonu were emphatic that the benefit of the suit enures for all the parties both named and unnamed.
The Court held: “As judgment in the instant appeal was given in favour of the plaintiff by the trial Court, in a representative capacity, it is for the benefit of not only the Plaintiff, Alhaji Chief Yekini Otapo alone but also for all represented parties.” The Court of Appeal while interpreting provisions of Order IV Rule 3 of the High Court Rules, Cap 61, Laws of Eastern Nigeria, 1963 which is also impari materia with Order 12 Rules 8 of the Federal High Court (Civil Procedures) Rules 2000 in the case of Egom vs.
Eno (2008) 11 NWLR (Pt.1098) page 320 held that it is not mandatory for the named plaintiffs to obtain the leave of the Court before signing for the unnamed plaintiffs and that a case so instituted is for the benefit of all. Clearly, the case of Otapo v Sunmonu (Supra) seemed to have had the present situation in mind as the decision therein has settled the current dispute.
Stated another way and for further elucidation, in the case of Otapo v Sunmonu (Supra), notwithstanding that the plaintiff failed to obtain the leave of the High Court to initiate the case in a representative capacity the Supreme Court held that the benefits enured for both the named plaintiff and the unnamed plaintiffs. In essence, the Court held that the provision of Order 13 Rules 14 of the Lagos State High Court (Civil Procedure) Rules (which is impari-materia with Order 12 Rule 8 of the Federal High Court Civil procedure Rules 2000) is permissive and not mandatory.
This Court had gone straight to the point was and still motivated by the desire to do substantial justice and avoid causing injustice or miscarriage of justice. See also the cases of Ifekwe v. Madu (2000)14 NWLR (Pt.688) 459; Awudu v. Daniel (2005) 2 NWLR (Pt.909)199; Salisu v. Odumade (2010) 6 NWLR (Pt.1190) 228 S.C and Ibezim v Ndulue (1992) 1, NWLR (Pt.216) Pg.173. The fact of the matter is that, in this instance obtaining the leave of Court to sue in representative capacity is a surplusage and superfluous.
On whether leave of Court is required where a plaintiff institutes action in a representative capacity, see the Court of Appeal decision per Hon. Justice Onalaja J.C.A in the case of Bankole V. Dada (2003)11 NWLR (Pt.830)174. On representative action at page 135 COMMENTARIES FROM THE BENCH PART II on the topic PARTIES TO CIVIL ACTION by ONALAJA, JCA it was stated as follows:-
“Where a plaintiff or plaintiffs institute an action in a representative capacity, there is the school of thought that the leave of the Court is required. With respect, I consider the leave superfluous, the duty of such plaintiff is to describe his capacity in the writ and to plead that capacity as a material fact in the statement of claim.
But where the plaintiff requires that the action be binding on the defendant in a representative capacity then the leave of the Court is required to sue the defendant in a representative capacity, This without prejudice to the fact the capacity still has to be pleaded in statement of claim”. The same Court in MR. ISRAEL IDOWU & ORS v.
THE REGISTERED TRUSTEES OF ONA IWA MIMO CHERUBIM AND SERAPHIM CHURCH OF NIGERIA AND OVERSEAS: (2012) LPELR-7865(CA) stated the following observation: “Representative actions may be accommodated without obtaining an order of Court for bringing the action in a representative capacity. Once an action is constituted in such a manner, the option is to amend the proceedings to reflect the representative capacity or to allow the action to survive in a representative capacity, not to strike out or dismiss the action.
See OGBOOGBOLU VS HODO (1941) 7 W.A.C.A. at 164 in effect, the issue of whether an action is brought in a representative capacity should not be rigidly enforced by the Court.” And this Court in a similar way held in the case of Mozie v Mbamalu 2006 15 NWLR (Pt. 1003) pg. 495 per Tobi, J.S.C. that: “The decision of this Court in Wiri v. Wuche (1980) 1-2 SC 1 comes to this: although leave is necessary at the trial Court to sue in a representative capacity, an appellate Court will not upset the judgment merely because such leave was not obtained in the trial Court. In Oyewole v.
Lasisi (2000)14 NWLR (Pt.687) 342 the Court held that where a plaintiff institutes an action in a representative capacity, leave of Court to sue in representative capacity is superfluous. See also Ifekwe v. Madu (2000) 14 NWLR (Pt.688) 459, where the Court also held that failure to obtain the leave of Court to sue in a representative capacity is not fatal as vitiate the proceedings.” Contrary to the position of the Court below, this Court in the case of Jack v.
Whyte (2001)3 S.C 121 this Court held as follows: “Learned counsel for the respondents, Okocha, SAN, quite helpfully conceded that the Court of Appeal perhaps by an inadvertent slip or mistake, did not take notice of the order made by Opene J (as he then was) that the defendants/appellants be sued in a representative capacity.
The senior advocate went further and submitted that it was settled law that failure to obtain leave to sue in a representative capacity was not fatal to and would not vitiate the validity of the action, Where there was no objection to the capacity in which plaintiff sued and in which the defendant was sued and the suit was prosecuted in that capacity to judgment, or was capable of being so easily understood it will be presumed that leave to sue in such representative capacity was granted Mr.
Okocha, SAN, referred to Order IV Rule 1 High Court Rules Cap 61 Laws of Eastern Nigeria and Order II Rule 7 (I) Rules of the High Court of Rivers State. See also Chief P.O. Anatogu & Ors v. Attorney General, East Central State & Ors (1976) 11 SC 109 and Joseph Afolabi and Ors v. John Adekunle & 1 Other, (1983)2 SCNLR 141 (198.3) 8 S.C. I agree that where a representative order would have been granted had it been asked for failure to obtain it will not vitiate the action. See Bulai v. Omoyajowo (1968) 1 All NLR 72.
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 this 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. See Wiri and Ors. v.
Wuche and Ors. (1980) 12 SC 1” This Court reiterated the same position in the case of Mbanefo v Molokwu (2014) 1-2 SC (Pt.11) 137 per Peter-Odili, J.S.C held thus: “Therefore the Agbalanze was bound upon the action as mouthed by the first respondent as he was representing the society. He was not acting on his own and the situation is not changed because no leave was sought and obtained before such a representation was made”.
Clearly, the Court below followed the wrong path hence the ensuing erroneous conclusion which is not supported by the well established decisions of this Court in the guiding light of what should obtain when a Court is faced with a scenario akin to the present. A step back in time into the record shows that the cross-appellant attached to one of their affidavits a letter tagged ‘authorization letter’ dated 28/4/2003 which was duly signed by the officers of the named and the unnamed cross-appellants.
The letter is a clear mandate issued on the eleven named plaintiffs to represent the unnamed plaintiffs. The letter was established on the Affidavit dated 14/10/2003. Significant, is the fact that neither the Appellant/1st respondent nor any of the unnamed plaintiffs objected to the said letter or challenged its validity at the lower Court as to substance or form. It even needs to be stated that the aforementioned letter or other evidence are clear indications that the action was a representative suit even though such written authorization is not required as an oral authorization suffices.
In emphasis, the class suit or representative action by its very nature permits any member of the group individually, unchosen and masked and without any organisation of the close or prior consent of others, to step forward and sue on behalf of all, in the sense that if he is successful all may participate in the result. This Court stated it as it really is in the case of Atane & Anor v.
Amu (1974) 10 SC 163 at page 168 where Irikefe, JSC (and he then was) stated thus: “We are equally satisfied that in a representative action such as this, the only legal burden cast upon a plaintiff is that of establishing the existence of a common interest and a common grievance. Such a plaintiff in fact not bound to obtain the consent of others whom he rightly represents.
The position is otherwise in the case of a representative defendant” Again brought to the fore is the fact that the appellant/1st Respondent has no locus to challenge the authority of the 11 named cross-appellant/plaintiffs to represent the unnamed plaintiffs. It is for the above position that I am persuaded to the dictum of Agbo JCA in U.T.B. v.
Koleoso (2006) 18 NWLR (pt. 1010) 1, thus: “In the instant case, the non-obtaining of the leave of other defendants by the defendants on the record to defend the suit in a representative capacity does not in any way affect the competence of the suit filed.
It is certainly not a threshold matter as suggested by the appellants and it is not required of the respondent to force the persons represented to avail the appellants of the authority they contend is a condition precedent for proper representation.” The plaintiffs have no obligation to seek the leave of the mass of defendants to sue them in a representative capacity and it will be strange indeed for a Court to avoid an action because a hostile defendant says he, the defendant sued, has failed to obtain the leave of other defendants to defend in a representative capacity.
The plaintiff is not expected to call a meeting of his adversaries to enable them regularise his suit Any of the represented defendants who feels an aversion to the representation can apply to be joined directly. As rightly stated by the Court below, rules of Court relating to representative suits are rules of convenience that cannot be allowed to frustrate proceedings in any suit. Whether it is presumable that the 2nd and 3rd appellants have authority to represent all the shareholders of the 1st appellant Bank.
This issue has its origin at page 31 of the record of proceedings where as part of his ruling the trial judge had said. “It is presumable that the 2nd and 3rd respondents are Chairman and Managing Director respectively of the 1st respondent possess representative capacity and can act on behalf of the shareholders of the company”. See also the Court of Appeal case of ALHAJI (HON) ISHOLA LAWAL & ORS. v. ATTORNEY GENERAL OF KWARA STATE & ANOR (2010) LPELR-4425 (CA).
The case of Governor of Ekiti State v Hon Kola Fakiyesi (2009) LPELR-8353 aptly captured the narrative thus: “Where there is no authorization and leave of Court to sue in a representative capacity; where the pleadings and the evidence conclusively show a representative capacity the trial Court can justifiably enter judgment”. The Supreme Court has held that the adverse party lacks the locus standi to challenge the authority of named plaintiffs to represent the unnamed plaintiffs. In S.P.D.C.N LTD v.
EDAMKUE (2009) 14 NWLR (PT.1160), page 1 at PG-27-28, this Court per OGBUAGU, JSC held thus: “as regards evidence of any authorization from the two families or communities of the 1st and 3rd sets of plaintiffs/respondents to initiate the two suits on their behalves/behalf, I hold that the Appellant has no locus standi, to object to the said representation not being a member of those families or communities.
It is settled that once the plaintiff/plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or community to sue in that capacity. It is only a member of that group, family or community, who can dispute, intervene or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sued.
It will be futile for a defendant who is not one of those the Plaintiff/Plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect defendant adversely. See the case of CHIEF P. C. ANATOGU & ORS VS ATTORNEY-GENERAL OF EAST CENTRAL STATE (1974) 4 ECSLR 36; (1976) 11 SC 109-ONYEMUZE & ORS v. OKOLI & ORS (1973) 3 ECSLR 150; ALHAJI/CHIEF OTAPO & ORS vs.
CHIEF SUNMONU & ORS (1987) 2 NWLR (PTS8) @ 603; (1987) S SCJN; (1987)2 N5CC VOL 18 P, 677 and DANIEL AWUDU & ANOR v. RAUTHAN DANIEL & ANOR (2005)2 NWLR (PT.90) 199 @ 222-223 C.A. citing the cases of ANATOGU vs. ATTORNEY-GENERAL OF EAST-CENTRAL STATE; CHIEF OTAPO vs. CHIEF SUNMONU (SUPRA); BUSARI vs. OSENI (1992) 4 NWLR (PT.23) 557.” There is no contesting the right of the unnamed cross-appellants just like the named cross-appellants to be heard in a representative suit.
This right is guaranteed under Section 36 of the Constitution and the Court owes a duty to protect that right and give voice to the expression of this freedom by the unnamed cross-appellants. The Court of Appeal in the case of Ibigbami v Military Governor Ekiti State (2004) 4 NWLR Pt. 863 pg. 243 held that: “in a representative action every member of the class represented by the main plaintiff is equally a party to the action though unnamed.
See in Re UGUDU (1988) 5 NWLR Pt. 93 pg 189 and Otapo v Sunmonu (1987) 2 NWLR Pt. 158 at 58.” This Court per Obaseki, JS.C. gave blessing to this position of the law in the case of Otapo v Sunmonu (supra) as follows: “A hearing can only be fair when all parties to the dispute are given a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing.
When therefore, the represented parties were not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot come within the category of fair hearing.
Without fair hearing, the principles of natural Justice are abandoned, and without the guiding principles of natural justice concept of the rule of law cannot be established and grow in the society.” I posit that the Court has a duty to allow parties to contest their dispute when there is evidence to show that they wanted their common grievances resolved once and for all in a bid to do substantial justice and save multiplicity of action even without the leave of the Court.
To ensure substantial justice, the Court, even where a plaintiff did not sue in a representative capacity and there is evidence to show he was so suing, encourages parties to amend their processes. The Court may go further to order a party to amend its capacity to accommodate the unnamed persons in deserving cases without leave. This is to meet the end of Justice.
Ogunwumiju, J.C.A (as he then was) in the case of BAMISILE V OSASUYI (2007) 9 NWLR PT 1042 p.225 held thus; “It is trite that where a plaintiff did not sue in a representative capacity and there is evidence to show he was so suing, the Court shall aim at doing substantial justice and save multiplicity of suits by amending the capacity in which the suit is instituted so as to bring it in line with the evidence even without any formal application.” To underscore the desirability and enthronement of substantial justice, the Courts have the discretion where a plaintiff had sued in a personal capacity instead of a representative capacity allow the plaintiff to amend the process to reflect the evidence and the Court proceed thereafter to enter judgment for the plaintiff as representing his family or community.
I rely on the following cases: OSUNRINDE & 7 ORS vs. AJAMOGUN (1992) 6 NWLR (Pt. 246) 156; (1992) 7 SCNJ (Pt.1) 79 @ 114-115. In fact, in the case of PRINCE LADEJOBI & 2 ORS vs. OTUNBA OGUNTAYO & 9 ORS (2004) 7 SCNJ 298 @ 310-311, (2004) 18 NWLR (PT 904) 149 – per UWAIFO, JSC it was held that the law is that a person has the right to protect his family’s interest in a property or title and can sue for himself and on behalf of his family in a representative capacity. The case of SOGUNLE VS. AKERELE (1967) NMLR 58; NTA vs.
ANIGBO (SUPRA); MELIFONWU vs EGBUJI (1982) 9 SC 145 @ 159 and CHIEF ATANDA & ORS vs AKUNYUN (stated therein as Olarewaju) (1988) 4 NWLR (PT.89) 394 were therein referred to. (It is also reported in (1988) 10-11 SCNJ 11). See also the case of COKER vs. OGUNTOLA & ORS (1985)1 ALL NLR (PT 1) 278, (1985) 2 NWLR (PT.5) 87; ALHAJI GEGELE vs. ALHAJI LAYINKA & 6 ORS (1993) 3 SCJN @ 45 reported as Layinka vs Gagele (1993) 4 KLR 5 (1993) 3 NWLR (PT 283) 518 and AWUDU & ANOR vs DANIEL & ANOR (2005) 2 NWLR (PT.909) 1999 @ 222- 223 C.A.
The cross-appellant certainly has made the point of the meritorious character of this cross-appellant. I too allow it and I abide by the consequential orders made. Cross-appeal allowed.
JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading in its draft form, the lead judgment of my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC just delivered. I am in complete agreement with his reasoning and conclusion that the cross- appeal of these Respondents/Cross-Appellants has merit and should be allowed. The position of the law is trite that the rule permitting representative action is a rule of convenience. The essence is mainly to curtail multiplicity or influx of suits on the same interest or matter.
Such representative action is most appropriate once there is a common interest involving many aggrieved persons who are ready to enforce their rights in Court. See Durbar Hotel Plc Vs. Ityough (2011) 9 NWLR (Pt.1251)41; Adeleke Vs. Anike (2006)16 NWLR (Pt.1004)162; Anatogu Vs. Attorney-General East Central State (1976) 11 SC 109. It follows therefore that the rule governing representative action must necessarily be treated with some air of flexibility and liberality and not as a matter of strict rules which requires rigid compliance.
In the case of Olatunji Vs. Registrar Co-operative Society (1968) NMLR 393, this Court listed the requirements which must be available before a suit is commenced in a representative capacity, as follows: (1) There must be numerous persons interested in the case or the side to be represented: All those interested must have the same interest in the suit.
That is, their interest must be joint and several. (2) All of them must have the same grievance. (3) The proposed representative must be one of them (4) The relief or reliefs sought must be in its nature beneficial to all the persons being represented. See also Atanda Vs. Olarenwaju (1988)4 NWLR (Pt.89)394.
In the instant case, the named Cross-Appellants commenced the action for themselves and on behalf of slightly over 1000 of their colleagues who were relieved of their employments in one fell swoop. They all share a common interest which is to be reinstated to their job with attendant benefits. It would be inefficient management of judicial time and resources to have each of them initiate individual suits on the same subject matter which could be conveniently determined in a single action.
To this end, I hold the firm opinion that the Court below was wrong to have held that the judgment delivered in the suit inure only to the named applicants. There is no strict applicability of the rule for leave or authorization to sue in a representative capacity. All the aggrieved applicants, named and represented, shall be bound by and take benefit of the judgment. The cross-appeal is meritorious and it is hereby allowed by me. I also make no order as to cost. Appeal allowed.
ABDU ABOKI, J.S.C.: I had the benefit of reading in draft, the judgment prepared by my learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. just delivered. I agree with the reasoning and conclusion that the cross-appeal is meritorious and ought to be allowed. I accordingly allow it.
The Cross-Appellants were all members of Staff of CBN. Between 1996 and 2003, the Federal Government gave various written directives to the CBN to terminate the appointments of some of its staff. The Cross-Appellants and over one thousand other unnamed Cross-Appellants were prematurely laid off.
Aggrieved by the action of the CBN, the Cross-Appellants brought a representative action for themselves and on behalf of the over one thousand staff of the CBN who were laid off.
The CBN by a preliminary objection, challenged the competence of the action on the basis that there is neither an authorization nor approval of the trial Court to commence the suit in a representative capacity. The trial Court ruled against the CBN.
Dissatisfied with the ruling, the CBN appealed to the Court of Appeal. The Court below refused all the grounds of the appeal, but held that the suit inures for the benefit of only the named Eleven Plaintiffs (Cross-Appellants).
The Cross-Appellants are aggrieved by the part of the decision that the suit inures for the benefit of only the named Eleven Plaintiffs (Cross-Appellants), and have cross-appealed to this Court.
They raised a sole issue for determination, to wit: “Whether given the special circumstances and facts on record, the Cross Appellants’ action for themselves and on behalf of the slightly over 1,000 (one thousand) rationalized staff of the 1st Respondent enures only for the eleven named Applicants?”
The CBN (Cross Respondent) also distilled a sole issue, that is: “Whether this suit inures in favour of only the eleven named Plaintiffs (now Cross-Appellants) and not for the benefit of the other unnamed persons in the absence of any authorization and/or leave to sue in a representative capacity?”
The nature of a representative action is such that given a common interest and a common grievance, a representative suit is appropriate if the relief sought by its nature is beneficial to all the persons sought to be represented. See:Oseni & Ors v.
Dawodu & Ors (1994) 2795 (SC) Various States High Court Rules in Nigeria have enacted provisions which are to the effect that, where more persons than one have the same interest in one suit, one or more such persons may, with the approval of the Court be authorised by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.
By the provisions of Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rules 2000, which was the applicable Rules of the Federal High Court at the time this suit was initiated, where more than one persons have the same interest in one suit, one or more of them, may, with the approval of the Court, be authorized by the other persons interested to sue or defend the suit for the benefit of, or on behalf of all the parties so interested. I should think that that Rule, stated above in its words and application is permissive.
The Rule should be seen as not rigid but as flexible. it is often described as a tool of convenience which should be applied, nor in any strict or rigorous sense but according to its permissive scope. It is for this reason, that the Courts have come to the conclusion that failure to comply therewith ought not to make the action incompetent. In Otapo v.
Sunmonu & Ors (1987) LPELR-2822 (SC), this Court outlined the principles applicable, where a party failed to obtain leave to sue in representative capacity, and stated that: “It is settled that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action. Our Courts do not easily wish to deprive citizens who come before them of their right of action. I never would.
This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was sought throughout in that capacity, the trial Court can justifiably properly enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for and obtained. Thus, it is required that a plaintiff should show on his writ and his pleadings that he is suing in a representative capacity.
Yet, even at that where a writ of summons is defective, to ensure that substantial justice is done, the Courts, rather than declare the suit incompetent, would allow amendment of the writ which is defective only in its failure to state the capacity in which the action is brought” Applying the foregoing principles, I would not declare this action incompetent, even though it is not evident that leave was sought and/or obtained before the Plaintiffs Cross-Appellants instituted their suit in a representative capacity.
There is no doubt that all over a thousand Staff of the CBN have a common interest, and claim the same right and remedy in their writ of summons and statement of claim. In the action, they expressed their desire to sue in representative capacity and so stated in the processes filed and served. On the authorities alluded to in this judgment, the Court below was wrong to hold that the judgment delivered inured only to the named Applicants. All the Cross Respondents, named and represented, shall be bound and shall take benefit of the judgment.
It is for these reasons, and for the fuller reasons enunciated in the lead judgment of my learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C., that I agree that there is merit in this cross-appeal. It is hereby allowed by me. I also abide by the consequential orders contained in the lead judgment.
TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, KEKERE-EKUN, JSC granted me the privilege of reading before now, the leading judgment prepared and rendered in this appeal. I am in complete agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add. I abide by all consequential orders including the order on costs.