Legalpedia Citation: (2014) Legalpedia (CA) 14119

In the Court of Appeal

Thu Jun 26, 2014

Suit Number: CA/L/985/2008

CORAM

MOHAMMED AMBI-USI DANJUMA

SAMUEL CHUKWUDUMEBI OSEJI, JUSTICE COURT OF APPEAL

PARTIES

ONYEMAECHI NWAOSUOJOMU LAWALEMMANUEL ONWUKA (suing for themselves and on behalf of 248 employees of HEP Engineering (Nig.) Ltd dismissed by the company on 8/2/96) APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellants were employees of the Respondent and were dismissed for staging a protest against the reduction in their salary. During the protest policemen were invited to restore order but their presence led to violence which resulted into destruction of the Respondent’s property. Consequently the Respondent published the dismissal of the Appellants in some Daily Newspapers which made the Appellants institute an action in the Lagos State High Court seeking a declaration that the purported dismissal constitutes a violation of the right to fair hearing and is null and void amongst other reliefs. While instituting the action the Appellants sought the court’s leave to bring the action in a representative capacity and it was granted. Upon the retirement of the trial judge the matter was transferred to another judge for a trial de novo. At the end of the hearing while parties were waiting for judgment the judge invited the parties to address the court on the propriety of the suit being brought in a representative capacity. In the ruling delivered by the court on the matter the Appellants case was struck out for being incompetent having been brought in a representative capacity. Aggrieved by this ruling the Appellants appealed.

HELD

Appeal allowed

ISSUES

Whether having regard to the circumstances of the case, the learned trial judge was right to have held that the claimants could not maintain the action collectively or in a representative capacity.    Whether the learned trial judge ought not to have considered the merits of the case in addition to the issue of competence of the action.

RATIONES DECIDENDI

TRIAL DE NOVO – WHETHER AN ORDER OF TRIAL DE NOVO PRECLUDES ANY ORDER MADE TOWARDS THE INITIATION OF AN ORIGINATING PROCESS

“An order of trial de novo precludes or does not extend to any action taken or any order made towards the initiation of an originating process such as the filing of a writ of summons and statement of claim”. PER OSEJI, JCA

REPRESENTATIVE ACTION – ATTITUDE OF THE COURT IN ABSENCE OF AUTHORIZATION TO SUE IN A REPRESENTATIVE CAPACITY

“It is not in all cases that the court will hold that a party has no authority to sue in a representative capacity where there is no formal authorization by way of documents. The court adopts a flexible attitude, based on the facts and circumstances of each case”. PER NDUKWE- ANYANWU JCA

REPRESENTATIVE ACTION – CONDITIONS THAT MUST BE SATISFIED TO INSTITUTE A REPRESENTATIVE ACTION

The Supreme Court in Olatunji Vs The Registrar Co-Operative Societies (1968) NMLR 393 laid down the conditions to be satisfied by a party who seeks for leave to sue in a representative capacity. They are:-
(l)There must be numerous persons interested in the case or the side to be represented
(2) All those interested must have the same interest in the suit i.e. their interest must be joint and several.
(3) All of them must have the same grievance.
(4) The proposed representative must be one of them, and
(5) The relief sought must be in its nature, beneficial to all the persons being represented”. PER OSEJI, JCA

REPRESENTATIVE – WHO IS A REPRESENTATIVE?

“A representative is a person authorized to act or speak for another or others. It therefore means that, the party wishing to sue or defend in a representative capacity must obtain the authorization to sue or defend from the person or persons he wishes to represent”. PER NDUKWE- ANYANWU JCA

REPRESENTATIVE ACTION – EFFECT OF FAILURE TO OBTAIN LEAVE TO SUE IN A REPRESENTATIVE CAPACITY

“Failure to obtain the leave of court to sue in a representative capacity is not fatal as to vitiate the proceedings. The court cannot strike out or dismiss an action just because the plaintiff did not obtain the leave of the court to sue in a representative capacity” PER NDUKWE- ANYANWU JCA

TRIAL DE NOVO – PURPOSE FOR ORDERING A TRIAL DE NOVO

“The order that a matter be heard de novo in a civil case is an order made for the benefit of both parties so that the matter in dispute could be addressed and resolved on the merit”. PER OSEJI, JCA

FUNCTUS OFFICIO – WHEN DOES A COURT BECOME FUNCTUS OFFICIO

“Once an issue has been raised and determined by the court between the litigating parties, the court becomes functus officio to either direct or allow parties to reopen the same issue before it for re litigation”. PER OSEJI, JCA

CASES CITED

STATUTES REFERRED TO

Court of Appeal Act 2004

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