Dumez Nigeria Limited Vs Peter Nwakhoba & 3 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

On 19th June,2002, the Court of Appeal, Abuja Division, by a unanimous decision set aside the judgment of the trial High Court of Justice of Kogi State sitting at Ajaokuta delivered on 22nd June,2000, dismissing the plaintiffs claims against the defendant. The present appeal is therefore by the defendant against that judgment of the Court of Appeal.

The case was initiated by the plaintiffs by an ex-parte application filed on 10th August,1995, where the plaintiffs sought for and obtained leave of the court to sue the defendant in a representative action. Subsequently, the plaintiffs brought their action in that capacity claiming in their paragraph 18 of the Amended Statement of Claim, the following reliefs:

WHEREOF the plaintiffs jointly and severally claim against the defendant as follows:

1. An order of this Honourable Court that the plaintiffs who were ex-security workers at different stages between January,1989 and December,1994, are entitled to the short payment arising from the overtime and medical arrears paid to their colleagues on 28th March,1995, for the period of service between January,1989, to December,1995.
2. An order of this court compelling/directing the defendant to pay the plaintiffs their respective short payment inform of overtime and medical arrears as stated in the list containing the names of the plaintiffs.The case was heard on pleadings which were subjected to several amendments and further amendments by the parties. In the course of the hearing, only the 1st plaintiff gave evidence in support of the diverse claims of the plaintiffs to their arrears of overtime and medical arrears. The defendant on its part called three witnesses who testified in its defence. At the end of the hearing, the learned trial Judge, Rekiya Okpanachi, J., made specific findings on the evidence on record and came to the conclusion that the plaintiffs have failed to prove their claims and consequently dismissed the entire action against the defendant. Aggrieved by this order of dismissal of their claims, the plaintiffs then appealed to the Abuja Division of the Court of Appeal which after allowing the appeal, granted relief one to the plaintiffs and remitted their second relief to the trial court with liberty to the plaintiffs to apply to that court for further proceedings for the purposes of taking of account between parties to ascertain the respective claims of the plaintiffs and the ultimate payment of the same to them. The defendant, which was the employer of the plaintiffs was not happy with the judgment of the Court of Appeal, has now appealed to this court raising four issues from the grounds of appeal for determination. The issues are:
3. Whether the learned Justices of the Court of Appeal were right to have remitted the case to the trial court for relief No.2 to be tried by further proceedings and for the plaintiffs to apply to the trial court to take account between the parties when that relief or claim was not the subject of appeal before it
4. Whether on the evidence at the trial, the Court of Appeal was right in reversing the order of dismissal by the High Court of relief No. 1 and held that the plaintiffs are entitled to short payment arising from the overtime and medical arrears approved under the National Joint Industrial Council Agreement for Building Construction Workers in 1989
5. Is the claim of arrears of overtime the common interest and the common grievance between the plaintiffs, who joined the defendant’s company at different times and left the employment of the defendant’s company at different times and for different reasons
6. Could the Court of Appeal Justices discountenance the issue of demurrer properly argued before it and struck out the argument of the respondent because there is no cross-appeal

In the Brief of Argument filed by the plaintiffs who are now the respondents in this court, similar four issues as identified in the appellant’s Brief of Argument though differently framed, were also raised in the respondents’ Brief.

The facts of this case summarily stated are that the plaintiffs now respondents are former employees of Dumez Construction Company. They were employed and served the Company at different periods and who also left the services of the Company at different periods and for different reasons between January, 1989 and December,1994. During this period, there was a protest from the security staff of the appellant over short payment in form of overtime and medical arrears. Ultimately, the management of the appellant agreed with the workers union to pay the security workers then in the service of the company, the overtime arrears covering the period between January,1989 and December,1994. That payment was made on 28th March,1995. On seeing this development, the plaintiffs/respondents as former security workers of the appellant who were no longer in the service of the Company and who felt that they were also entitled to the package of arrears of overtime and medical arrears paid, forwarded their claims in a letter containing their names and various claims of each of them to the appellant. Although the Workers’ Union supported the claims of the respondents, the appellant was not inclined to accede to the demand of the respondents which gave rise to the action at the trial court resulting in the present appeal.

Coming back to the issues for determination in this appeal, the main issue in my view, is whether the court below was right in setting aside the findings of facts on the evidence before the trial court and the dismissal of the respondents’ entire action for failing to prove the same Learned counsel to the appellant in his argument in support of this issue which is the second issue in the appellant’s Brief, referred to the relevant paragraphs of the Amended Statement of Claim, particularly paragraphs 4, 5, 5(a), 5(d), 5(e) and 18(2) and argued that the evidence of the 1st plaintiff who was the only witness who testified for the plaintiffs, was not enough to prove the case of the respondents as required by law. He referred to the evidence of the 1st plaintiff under cross-examination where the witness stated that he did not know the number of hours of overtime he and the 20th plaintiff, Mohammed Ndakwo put up during the period covering their claims and observed that the plaintiffs’ claim for declaration in the 1st relief, could not have been proved by such evidence because declaratory reliefs are not granted even on admission by the defendant but on proof to the satisfaction of the trial court by the plaintiffs. The case of Osewale v. Ezeiheshie (1991) 1 NWLR (Pt.170) 699, was relied upon in support of this submission. Learned counsel observed that if as the court below held in its judgment that it was obligatory on the part of the plaintiffs/respondents to show by their own evidence that they were entitled to the declaration sought, it was quite clear that plaintiffs/respondents have failed to prove their case justifying the order of dismissal made by the trial court. That relying on the cases of Narindex Trust Limited & 1 Or. v. Nigeria Intercontinental Merchant Bank Ltd (2001) 4 S.C. (Pt.II) 25; (2001) 4 SCNJ 208 at 211 and 220, Onehiokobia v. Momodu Ajanya & Ors. (1998) 5 SCNJ 95 at 104 and Anthony O. Fyama Edebiri v. Doleyi Osawe Edebiri & Anor. (1997) 4 SCNJ 177 at 190, the plaintiffs/respondents having failed to plead the figures of the amount each of them was claiming and support same by evidence, the trial court was right in dismissing their claim. Concluding, learned counsel argued that the court below acted in error in setting aside that decision which he urged this court to restore in allowing this appeal.

Learned counsel to the respondents however, does not agree with the argument that the respondents have failed to prove their case. He maintained that the evidence of the 1st plaintiff taken along with the evidence of D.W.1, D.W.2 and D.W.3, has clearly established the fact that the plaintiffs/respondents worked for the defendant/appellant within the period of January,1989 to December,1994. Also established, according to the learned counsel, was the fact that the plaintiffs’/respondents’ colleagues who were still in the service of the appellant, were duly paid their arrears of overtime and medical arrears covering the same period being claimed by the respondents. Learned counsel referred to the cases of Nwoke & Ors. v. Okere & Ors. (1994) 17 LRCN 123 at 142 and Akinola v. Fatoyinbo Oluwo & Ors. (1962) All NLR 244, on the powers of the appellate court to interfere with the decision or discretion of the trial court where that court took into cognizance wrong principles of law or immaterial facts in exercising its discretion and insisted that the power to set aside or interfere with the decision of the trial court on relief No.1, was rightly exercised by the court below, warranting no justification for this court to interfere.

The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing Declaratory Reliefs to the satisfaction of the court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. In other words, declarations of right as sought by the plaintiffs/respondents in their first relief against the defendant/appellant in the present case, cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant witnesses. See Wallersteiner v. Moir (1974) 3 All ER 217 at 251, where Buckley, LJ., said:

It has always been my experience, and I believe it to be a practice of long standing, that the court does not make declarations of right either on admission or in default of pleading……….but only if the court was satisfied by evidence.

See also Metzger v. Department of Health and Social Security (1977) 3 All ER 444 at 451. This statement of the law was adopted by this court in Vincent I. Bello v. Magnus Eweka (1981) 1 S.C. 101; (1981) 1 S.C. (Reprint) 63, and also applied in Motunwase v. Sorungbe (1988) 12 S.C. (Pt.1) 130; (1988) 5 NWLR (Pt.92) 90 at 102.

Having regard to the position of the law, in the resolution of this issue, one has to look into the relative evaluation of the evidence of the plaintiffs/respondents on record in support of their first relief for the declaration of their rights to the entitlement of the payment of arrears of overtime and medical arrears as seen and acted upon by the two courts below. The learned trial Judge after scrutinizing the evidence before it particularly that of the 1st plaintiff being the only witness who testified in support of the plaintiffs’ claim, made far reaching findings regarding the quality of the evidence. The relevant part of the judgment of the trial court at pages 107 to 108 reads:

In any case what is the sum of the plaintiffs claim. The court as seen from above has suo motu asked this question before. The plaintiffs’ evidence confirmed paragraphs 5d and 5e of the Statement of Claim that they were employed at different times and left the company at different modes and at different times. So their claims cannot be the same. The 1st plaintiff has a bud in his own eyes and throughout his evidence he was unable to remove that bud. He does not know the number of hours of overtime he had worked. He does not know the dates he was absent from duty in 1993 nor the number of public holidays in 1992 and 1993. This fact was necessary since he had said

that they were working 12 hours daily throughout (sic) 1999 minus the public holidays and others. It is therefore not surprising that he was unable to remove the bud in another persons eyes. He knows Mohammed Ndakwo one of the plaintiffs, but he does not know how many hours overtime he had worked. Now if the claim in that of hours overtime can the plaintiff succeed without knowing in the first instance the number of hours of overtime they are claiming It is pertinent to refer to the summary of the plaintiffs claim in paragraph 18(2) of the Statement of Claim.