National Electricity Liability Management Limited V. Emmanuel Sunday Omotusi & 400 Ors (2016)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABUBAKAR, J.C.A.

This is an interlocutory appeal against the ruling delivered by the Federal High Court presided over by Hon Justice Abdullahi Mustapha (C.J.) on the 27th day of January 2009 dismissing Appellants preliminary objection challenging the competence of the suit before the lower Court and the Jurisdiction of the Federal High Court to hear and determine the suit.

The facts giving rise to this appeal are briefly that the 401 Respondents in this appeal, as joint Plaintiffs commenced action against the Appellant by originating summons at the Federal High Court claiming the following:
1. A DECLARATION that by virtue of the Federal government circular No. SWC/S/104/S.8/25 dated 11th May 1999 which emanated from the Presidency, Office of the Chairman salaries, income and wages commission, the Plaintiffs who are retired from the National Electric Power Authority in the year 2000 are entitled to an increase of 1500% on their pension.
2. A DECLARATION that by virtue of the Federal Government Circular Ref. No. B. 63316/S.1/X of 6th July 1999, which emanated from the

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Presidency, Office of the Chairman, National Salaries, Income and Wages Commission, the Plaintiffs who were retired from the National Electric Power Authority in the year 2000 are entitled to an increase of 30% of the pension.
3. A DECLARATION that by virtue of the Federal Government Circular Ref. No. SWC/04/Vol. IV/1011 dated May, 2000 which emanated from the Presidency Office of the Chairman National Salaries, Income and Wages Commission, the Plaintiffs who are retired from the National Electric Power Authority in the year 2000 are entitled to an increase of 142% on their pension.
4. AN ORDER that the Defendant should give effect to the Federal Government Circular No. SWC/5/104/S.8/25 of 11th May 1999, Circular Ref. No. B632/S.1/X of 6th July 1999 and Circular No. SWC.4/Vol. IV/1011 of 17th May 2000 by calculating and increase the pension of the Plaintiff in accordance with the Federal Government Directives.
5. AN ORDER that the Defendant should pay the Plaintiffs all what they are entitled to on the basis of the pension increases from the effective dates of the Federal Government Directives.

The Appellant as defendant at the Court

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below immediately filed Notice of Preliminary objection dated 14th May 2004. The objection is at page 53-54 of the record of appeal. The grounds upon which the Defendant/Appellant brought the objection are as follows:
I. There are 401 Plaintiffs purporting to be former employees of the Defendant claiming in the suit with respect to their alleged several and individual contracts of employment with the Defendant, none of which related facts is known or admitted by the Defendant.
II. The fact of each of the 401 Plaintiffs being a retiree of the defendant, his contract of service (if any) and the application to him of the alleged Federal Government Circulars is radically disputed by the Defendant.
III. The alleged contract of service (if any) for each of the 401 Plaintiffs is personal to him as well as the claims (if any) thereunder and such 401 different claims and causes of action so wrongly constituted in one action will result in incalculable and unimaginable inconvenience and embarrassment to the Defendant as to render fair and proper trial impossible.
IV. The postulations in the originating summons are at best academic; disclose no

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reasonable cause of action and this Honorable Court has no jurisdiction to entertain it.

The learned trial Judge took oral submissions on the preliminary objection and delivered a considered ruling on the 27th day of January 2009 dismissing the preliminary objection. The Defendant/Appellant became aggrieved by the decision of the lower Court dismissing its preliminary objection and therefore brought this appeal upon five grounds of appeal.
The grounds and their respective particulars are found at pages 70-71 of the record of appeal.

Learned Counsel Ezeobi filed Appellants brief of argument on the 21st day of April 2010, while learned Counsel Akinrele filed the Respondents brief on the 22nd day of April 2016.

The Appellant nominated four issues for determination through learned Counsel, the issues are set out as follows:
i. Whether this suit commenced by originating summons by 401 purported retirees of the National Electricity Management Market Company Limited (NEMMCO) for declaratory and injunctive reliefs, contentious and hostile in nature, was commenced by due process of law having regard to the applicable law and binding

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