Co-operative & Commerce Bank (Nigeria) Plc V. Mrs. Amadi Rose U. & Ors (1988)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

The plaintiffs/respondents (hereinafter called “the respondents”) sued the appellant Bank for the sum of N1, 649,290,40 being sundry claims by various individuals as specified in the schedule attached to the statement of claim. The schedule is headed “Schedule of claims of C.C.B. Retired (Junior Staff) under to years”. The claimants were originally 15 in number before objection was taken as to the competence of the suit. The names of 2 persons were struck out leaving 13 names. The claim as averred in the statement of claim at page 5 of the record of appeal reads as follows:”

Wherefore the plaintiff claims as follows:

1. The sum of N1, 649,290.40 (One Million, Six Hundred and Forty-nine Thousand, Two Hundred and Ninety Naira and Forty Kobo only) in favour of the plaintiffs against the defendant being balance of the gratuities, value of earned leave and transport entitlements due to the plaintiffs from the defendant upon the compulsory lay-off of the plaintiffs by the defendant.
2. Interest on relief one above at the rate of 21 % per annum from 2nd day of May, 1994 till date of judgment and thereafter at the rate of 5% till the judgment is finally liquidated.”

The schedule referred to in paragraph 5 of the statement of claim as Annexure is at page 6 of the record of appeal.

The respondents were the staff of the appellant bank in different cadres. They were employed in the bank at different times to different offices with different salaries and different conditions of service. The action arose as a result of their compulsory retirement or retrenchment.

On being served with the statement of claim, the appellant filed a motion to strike out the suit for misjoinder of parties and causes of action. The motion was duly heard. On 28th February, 1995, the learned trial Judge delivered her ruling in which she dismissed the application. Dissatisfied with the said dismissal, the appellant has appealed to this court on three grounds of appeal. The appellant has also filed its brief of argument which was duly served on the respondents. The respondents failed to file any brief. The appellant brought a motion to hear the appeal on the appellant’s brief only since the respondents have failed to file a brief of argument. When the motion came up for hearing on the 19th May, 1997, the 1st respondent said that she conceded to the appeal being allowed in respect of herself. The appeal as it concerned the 1st respondent was accordingly allowed. Learned counsel for the appellant Chief Ugolo moved his motion to hear the appeal on his appellant’s brief only. The motion thus moved was granted as it concerned the 2nd, 3rd and 4th respondents. Hearing of the appeal was accordingly adjourned, and fresh hearing notices issued to 2nd, 3rd and 4th respondents.

In his brief, the appellant formulated three issues for determination vis:-

“(a) Whether the learned trial Judge was not in error when in dismissing the appellant’s motion he held that Order 3 rules 3 and 4 applied to the case without considering Order 3 rule 8 under which the application to strike out the suit was brought.

(b) Whether the Learned Trial Judge was not in error when he held that the suit was a representative action and not bad for misjoinder.

(c) Whether the Learned Trial Judge was not in error when he struck out the names of Epundu Joseph and Nsofor Brown from Annexure A, and held that the remaining 13 plaintiffs have a common interest, common grievance and common relief beneficial to all concerned.”

Learned counsel argued issues (a) and (b) together in his brief. He submits that he brought his motion in the lower court to strike out the suit under Order 3 Rule 8 of the High Court Rules of Anambra State applicable in Enugu State. According to counsel, Annexure A attached to the statement of claim gives the names, designations, years of service, entitlements based on basic salary, balance of claims on total emolument, value of earned leave, accrued salaries within leave period, transport allowances of 15 persons who are supposed to be the plaintiffs in this suit. It is submitted that the motion comes clearly within the purview of Order 3 Rule 8. It is further submitted that the suit is not a representative action as nobody gave any authority to any person. Counsel refers to Busai v. Osenni (1992) 4 NWLR (Pt. 237) 557; and Nwanguma v. Ikyaande (1992) 8 NWLR (Pt. 258) 192 at 200 – 201 and submits that since the respondents have no common interest or common grievance an action in a representative suit cannot be maintained. Counsel refers to Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 55; Adewoyin & ors v. Adedibu & ors (1958) WRNLR 145; Itumo & ors v. Anyim & ors. (1960) 4, E. NLR 48; Okafor & ors v. Nnaife (1973) 3 SC 85, at 94- 96.

On the third issue, the appellant complains about the striking out of the names of two of the persons whose names appear on Annexure A i.e. Epundu Joseph and Nsofor Brown. In court learned counsel urges us to allow the appeal and set aside the ruling of the lower court and strike out the suit.

Let me dispose of the third issue in this appeal. The third issue is of no relevance to the success or failure of this appeal. Beside the court’s wide powers of amendment under Order 18 of the High Court Rules of Anambra State 1988, the lower court had the powers to do what it did under Order 3 Rule 7. It provides:

“7. The court may, at any stage of the proceedings, and on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out”.