O. Ntuks & Ors. V. Nigerian Ports Authority (2000)

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GALADIMA, J.C.A.

By their application dated 24 May, 1999 and filed same date, the applicants have prayed for the following:

“(1) An Order affirming that the judgment of 12 July, 1996 is for all staff retrenched in June, 1991 which includes named and unnamed persons by virtue of its being a representative action.

(2) An order affirming the ruling of His Lordship A. R. A. Sahid of the Lagos High Court delivered on 7th May, 1999 facts.”

The back ground facts that gave rise to this application are as stated in the applicants’ 33 paragraphs affidavit and further affidavit of 8 paragraphs: also from the two Counter Affidavit filed by the respondent. The applicants were the plaintiffs whilst the respondent was the defendant in the Court below. For the purpose of this application, under consideration, the plaintiffs and the defendant will be referred to as ‘Applicants’ and the ‘Respondent’ respectively. The applicants by their writ of summons sued for themselves and on behalf of the Association of Retrenched staff of the Nigerian Ports Authority claiming as follows:-

1. A declaration that all the staff particularly those who put in a service period of between 5 to 9 1/2 years with the defendant Corporation are entitled to gratuity.
2. A declaration that those plaintiffs who have served the defendant for a period of 10 to 14 1/2 years qualify for pension and redundancy benefits under the pension Act 1960 as amended by circular ref. No. B.63216/51/X/618 of 13th September, 1991 and the plaintiffs’ condition of service.
3. A declaration that, each of the staff is entitled to productivity bonus which was approved when the plaintiffs were in service.

4 A declaration that all the plaintiffs are each entitled to 28 loads as contained in their condition of service.

5. An order compelling defendant to comply with the circular.”

On the 12th July, 1996, Sahid J., entered judgment in favour of the applicants in terms of the 1st and 2nd reliefs. Dissatisfied, the respondents appealed against the judgment. However, on 16th February, 1998, this Court dismissed the Appeal for want of diligent prosecution.

On 20th September, 1999 we took arguments from Counsel for the parties. Learned Counsel for the applicants A. M. Makinde referring to the Affidavit in Support of the Motion and the Exhibits, then submitted that the judgment should cover 7,000 staff of the respondents, which list the respondents’ Counsel had shown to him on 6th October, 1998. Learned Counsel further referred to evidence of P.W 1 in the Record of Proceeding and submitted that Exhibit P1 contained only 301 names of some of the plaintiffs that authorised the applicants to sue. That the names of 2nd, 5th and 7th applicants are not listed among the 301 and for this category of staff cannot now bring separate action, as it would be statute-barred. He relied on the following authorities: Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 at 592: Ezeonwu v. Onyechi (1996) 2 SCNJ. 250 at 254: (1996) 3 NWLR (Pt.38) 499: Oladoye v. Administrator of Osun State (1996) 10 NWLR (Pt. 476) 38 at 45.

It is further submitted that the judgment of 12/7/96 being a declaratory judgment the order of 7/5/99 was consequential order aimed at giving effect to the declaratory orders of 12/7/96 and that this Court can affirm the judgment and even correct any errors that are made in the judgment of the lower Court. For this submission, learned counsel relied on Alakija v. Abdullahi (1998) 5 SCNJ P. 1 at P.4; (1998) 6 NWLR (Pt.552) 1 Sc. Oladoye v. Administrator of Osun State (supra) and Emir v. Imieyeh (1999) 4 SCNJ P.1 at p.5. (1999) 4 NWLR (Pt.599) 442.

Learned Counsel for the respondents, O. Idemudia opposed the application. He referred to the Counter-Affidavit of the respondents. He contended that the jurisdiction of this Court was invoked by the appellants’ Notice of Appeal dated and filed on 6/4/99 against the ruling of lower Court of 29/3/99. But the present application is asking for the affirmation of ruling delivered on 7/5/99. Learned Counsel for the respondent therefore submitted that the ruling the applicant wants to be affirmed is that of 7/5/99 which is subsequent to the ruling of this Court of Appeal. He submitted that since the second prayer of this application is not subsumable under the present proceeding, this Court therefore lacks jurisdiction. In support of this he relied on:

(i) Abdulkarim v. Incar Nig. Lt. 1984 NSCC (Vol. 15) 603 at 617 paras. 10-30; and

(ii) Oguma Assoc. Co. Nig. Ltd. v. IBWA Ltd. (1980) NSCC Vol. 19 (Pt.1) P. 395; (1988) 1 NWLR (Pt.73) 658.

On the First relief sought by the applicants, the learned Counsel for the respondent submitted that the prayer is incompetent as the applicants are seeking for an affirmation of the lower Court ruling delivered on 12 July, 1996 by way of a motion brought on 24th May, 1999 – 3 years after that judgment.

He referred to Oguma Assoc. Co. Ltd. case (supra). Referring to order 1 rule 20(4) and (5) of the Court of Appeal Rules, under which this application was brought, learned counsel submitted that sections 24 and 25 of the Court of Appeal Act supersede the provisions of order 1 r. 20(4) and (5) of the Court of Appeal Rules. That the rule of the Court does not confer jurisdiction on Courts but the Act of Parliament does. He refers to the case of Clement v. Iwuanyanwu (1989) 2 NSCC Vol. 20 (Pt.20) P.234. It is further submitted that even if the application is taken on its merits, it cannot stand as the jurisdiction of this Court cannot be invoked without an appeal being heard; and that this application amounts to abuse of Court process. He refers to an English authority of Hanson v. W. Coal Co. Ltd. and Gas Co. Ltd. (939) 3 All AER p. 47 at 55 (Q biter).