Adedeji & Ors V. Cbn & Anor (2022)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
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.
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:
(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.
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.”
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.”
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.
- 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.
- That sometime between 1996 and March 2003, the 1st Respondent embarked upon various rationalization exercises at the instigation and directives of the Federal Government.
- That this rationalization from 1996-2003 is a continuous process, even till date.
- 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.
- 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.
- 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,
- 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.
- 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.
- 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.
- That you should ensure that the suit which should be in a representative capacity is filed before the end of May, 2003.
- 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:
- Mr. Olasupo Adedeji – National Co-ordinator
- Mr. Chimezie C Ahaneku – Deputy Co-ordinator
- Mr. GA, Nnamdi Osaji – Abuja Branch Representative
- Mr. B.S.C. Igwebuike – Lagos
- Mr. P.O. Olubowale – Benin Branch Representative
- Mr. N.A. Ogunbuyide – Abuja Branch
- Mrs. Pat Ikem – Abuja Branch
- Dr. (Miss) Joyce Ukaigwe – Lagos
- Mr. Wilson Onyefunazua – General Secretary
- Mr. R.O. Balogun – Lagos
- Mr. S.E.A. Ahirima – Port Harcourt Branch Representative
- That we shall fully discharge our obligations as regards the agreement we had earlier reached with you in respect of your legal representation.
CHIMEZIE C. AHANEKU
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.