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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip — Presiding Judge Hon. Justice O. A Obaseki-Osaghae — Judge Hon. Justice J.T Agbadu—Fishim — Judge DATED 10th May, 2010 SUIT No. NlC/EN/05/2009 BETWEEN 1. Mr. J. M. J Asinobi 2. Mr. S. Uche (for themselves and representing the 2004 Aba Retirees of Nigerian Breweries) - claimants AND Nigeria Breweries Plc. — Respondent REPRESENTATION: Elder C. D Ndukwe, for the claimants Ogochukwu Onyekwuluje, for the respondents. RULING The claimants were former employees of’ the respondents who were retired/out placed in an exercise in 2004 when the respondent laid them off. The claimants then filed a complaint against the respondent seeking the following reliefs: a. A declaration that the claimants are entitled to all their legitimate entitlements/benefits due to them at the time the employment was brought to an end on 26th November, 2004 i.e. i. Six months full salary in lieu of notice of termination (less amount already paid). ii, Redundancy benefits as per the existing management/union agreements at 32 weeks pay for every completed year of service. iii. Service gratuities applicable. iv. Benefits under the defendant’s pension funds. v. Good-will ex-gratia bonus of 32 weeks pay for every completed year of service in appreciation for their services. vi. Company’s product in appreciation of their services. vii. Refund of their National Housing Funds. viii. Incentive cash award otherwise called Productivity Bonus of 2002 of the claimants’ monthly basic salaries. vii. 2004 Christmas bonus. b. A declaration that the claimants’ successful periods of probation count as part of the length of service of the claimants for the exit or retirement benefit purposes. c. An order of this court directing the defendant to: i. Re—compute and pay the claimants, through their attorney in this suit, all the claimants’ legitimate entitlements/benefits due to them at the time the contract was brought to an end as specified in claim a. above (less amount already paid). ii Re—compute and pay to the following claimants through their attorney in this suit their retirement benefits based on 26 years service and not 25 years, Mr. J. M. J. Asinobi, Mr. Cookey, Mr. Mwakiwe, Mr. I. K. Ughogho and Mr. M. Ahuekwe iii Calculate and pay the claimants through their attorney in this suit their redundancy benefits as per the existing management/union agreement of 32 weeks pay for every completed year of service. iv. Show the claimants the calculation of their retirement benefits. The respondent, after entering appearance and filling its statement of defence, by a motion on notice dated and filed on the 10th March, 2010 urged this court to strike out this action. The said motion was brought pursuant to Order 11 Rule 1 of the National Industrial Court (NIC) Rules 2007 and the inherent jurisdiction of this court. The sole ground of objection by the respondent is that the suit is bad for misjoinder of parties and causes of action in that the claimants and the rest of persons they represent do not have the same common cause of action, common interest and common re1iefs to entitle them to bring one suit as in this case. The other ground of objection which challenged the jurisdiction of this court was abandoned by the respondent’s counsel. In its written address, arguing on this issue o misjoinder of parties and causes of action, the respondent argued that from the statement of facts filed by the claimants, it is correct to say that all the claimants do not have one common cause of action, interest and the reliefs are also not common to them. That this is made clearer by the document attached to the claim headed “EARLY RETIREES NB PLC MAY 2004” and the other documents not headed hut attached to the claim of the claimants. To the respondent, the claimants’ in paragraph 3 of their statement of facts pleaded thus: The respondent engaged the services of the claimants at various times and for various jobs as specified in the claimants’ documents/power of attorney herein attached and in paragraph 6 the claimants averred that they were employed at various dates and that their salaries were varied. They also pleaded that the ages and length of services of the claimants as shown on the document attached vary from person to person. That it is also a fact that there are two sets of claimants in this suit. That the first was described as “Earlier Retirees” while the other set was described as “Out placed Stall’. Also that the claim in paragraph 30(c)(ii) shows yet another set of claimants with distinct cause of action and relief. And so it is on the basis of the facts shown above that it is contended that this suit is had for misjoinder of parties and causes of action in a suit based on contract. that it is a cardinal principle of law that where parties contract individually under different terms and conditions and at different limes, they cannot sue collectively in one suit, referring to Amuchree v. Newinglon [19521 14 WACA 99. Also that this Principle was followed in Co—operative and Commerce Bank of Nigeria Plc v. Mrs. Rose Amaadi & ors II 998j 4 NWLR (Pt. 544) 37 of which the facts are on all fours with the facts in this suit. To the respondent, in the CCB case (supra), the bank compulsorily laid off 15 staff of the bank, who then brought one suit in a representative capacity claiming in the stilt balance of gratuities, values of unearned leave, transport entitlement etc. Upon a challenge on the issue of misjoinder of parties, and causes of action the Court of Appeal, per Ubaezuonu, JCA in striking out the suit for being bad for misjoinder of causes of action put clearly the principle of misjoinder as follows: “four named persons Mrs. Rose Arnadi, Epundu Joseph, Humphrey Eze and Patrick Enedeanya — purported to sue for themselves and on behalf of other 11 employees of the defendant retired or retrenched by the defendant. Each of these I5 persons was employed on a different date as can be seen from the annexure attached to the statement of claim and already referred to in this judgment. Each had his/her conditions of service which conditions are personal to him/her. The cadre of each is different from another. Their years of service are different. Their entitlements based on their basic salary are different. The balance of their claims based on their total emolument is different, one from another. The value of their earned leave is different one from another. Their six months salary in lieu of notice of retirement differs from each other. Their accrued salary within leave period is different from one another. Their expected claims are also different. All these are home out by annexure of which is attached to the statement of claim and forms part of it. I say without equivocation that there can be no better example of misjoinder of parties and causes of action as is presented in this case. Each of the 15 or 13 persons for whom the named plaintiffs purported to sue for has his/her own cause of action which cannot he joined with another. The law for misjoinder of parties or causes of action in tort applies also to misjoinder of parties or causes of action in contract as in the present suit. In Smurthwaite & ors v. Hannay (1894) AC 494, the House of Lords held that the several plaintiffs who claimed to have slipped cargo in a general ship under similar ships of lading could not join in one action because each of them had a distinct and separate cause of action. In fact, the principle in Smurthwaite & ors v. Hannay (supra) is identical with the principle in the case tinder consideration in this appeal 15 or 13 plaintiffs who contracted individually with the appellant hank tinder different terms and conditions and at different times have sought to sue collectively in one suit. That cannot be. It is not the law in Nigeria as in England where the above eases were decided. In Carter v. Rigby & Co (1896)2 GB 113 a number of miners had been drowned through the flooding of a mine. The personal representatives of the deceased joined miners in one action against the proprietors of the mine claiming that the mine had been flooded through negligence for which they (the proprietors) were responsible. It was held that the plaintiffs could not join in one act ion under the same rule which is similar to Order 3 Rule of the High Court Rules of Anambra State. See also P. & O. Steam Navigation Co. v Tsune Kijima (1895) AC 661 (Privy Council decision). To the respondent, in holding as the court did, the Court of Appeal held that the law of misjoinder of parties or causes of action in tort also applies to misjoinder of parties or causes of action in contract as in this case. That in an action in a representative capacity, all the parties represented must have a common interest. That in this case, all the parties do not have a common cause of action and interest and cannot, therefore, bring one suit to ventilate their grievances. I furthermore, that the terms of their contract differs from person to person, their interests differ from person to person; and in their two or three groups, the interest of the early retirees differ from that of the out-placed staff of the defendant and from the group shown in paragraph 30 (c). The respondent, therefore, submitted that an action in a representative capacity will not avail the claimants because each has a separate and distinct cause of action and should bring a separate action. Also that going by the decision in CCB v. Rose Amadi & ors (supra) which followed the old case of’ Amaechree v. Newington, the respondent submitted that this case as constituted is bad for misjoinder of parties and causes of action and so this court should set aside the claim and strike out this suit The respondent finally urged the court to strike out this suit for being bad for misjoinder of parties and causes of action. Opposing the preliminary objection, the claimants in their brief of argument submitted that the Supreme Court had in ATNACHPN v. MHWUN [2008] 158 LRCN 251 at 312 held, on the condition for joinder of parties, that the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Also that the joinder of parties whether as plaintiff or as defendant, is subject to two conditions, namely, the rights to relief must in each case be in respect of or arise out of the same transaction or series of transactions, and that there must be some common question of law or fact, referring to Ibighami v. Mil. Gov. Ekiti State [2004] 4 NWLR (Pt. 863) 243. To the claimants, from the statement of facts and the statement of defence, it is correct to say that all the claimants have a common cause of action, common interest, and all the reliefs claimed are common to all or them. That cause of action has been defined as bundle or aggregate of facts and circumstances giving rise to the plaintiff’s enforceable claims against the defendant as pleaded in the statement of claim, referring to Chevron Nig. Ltd v. Lonestar Drilling Nig. Ltd [2007] 150 LRCN 1796 at 1815 — 1816. That in the instant case, there are no two sets of claimants. That all the claimants are the 2004 Aba Retirees of the respondent and that in paragraph 3 of the respondent’s statement of defence, it admitted that all the claimants are former employees of the respondent at Aba Brewery. Also in paragraph 4, the respondent admitted that all the claimants were assigned to specific posts and assignments at the Aba Brewery. Further, in pa graph of the statement of defence, it clearly admitted that the named claimants were retired or out placed during the 2004 exercise and their entitlements were duly paid and received by the named claimants and other retired or out placed stall of the respondent. And all these admitted facts are common to the named claimants and to the other retired or out placed staff of the respondent. Also that all these named claimants and other retired or out placed staff of the respondent were:— i. former employees of the same respondent. ii. Present retirees of the same respondent. iii. 200-f set of retirees of the same respondent. iv. Duly paid or underpaid and who received (or did not receive) entitlement. The claimants further submitted that the right to relief of the named claimants and other 2004 retired or out placed stall of the respondent was in respect of or arose out of the same transaction or series of transactions i.e. transaction of employment with the same respondent as former stall’ or presently as retired or out placed staff. That in the instant case, series of transaction means series of employment and so it does not matter that the claimants were employed on different dates and assigned to specific post or duties. To the claimant, all that the law concerns itself is whether the right to relief was in respect of or arose out of the same transaction or series of transact ions, in this case relief either or not the named claimants and others were duly paid their entitlements when the contract was brought to an end. Also, the claimants submitted that they filed their claims in representative capacity. That order 4 Rule 2 of the NIC Rules 2007 provides that where claimants sue or a respondent or any of the several respondents is sued in a representative capacity, the originating process shall stale that capacity. That the claimants clearly showed the representative capacity in their originating process and that a suit in a representative capacity does not amount to misjoinder of parties or cause of action. Continuing further, the claimants argued “that the law is that a plaintiff may, in one action, claim relief against the same defendant in respect of’ two or more cause of action if the plaintiff claims, and the defendant is alleged to be liable in the same capacity, in respect of all the cause of action”. But that if it appears to the court that the joinder of such causes of action or of’ parties, as the case may, may embarrass or delay the trial or is otherwise inconvenient, the court may order for consolidation of matters pending before it in the interest of justice. The claimants then submitted that assuming there is misjoinder of parties or causes of action or that the joinder will he inconvenient to the court, the proper order is not to strike out the suit hut to order either separate trials or consolidation of the matters. That in the instant case and considering paragraph 30 of the statement of facts, the claim of the claimants before the court is for only declaratory and consequential injunctive orders and not tar damages for wrongful termination of job or order for reinstatement as misconstrued by the respondent as paragraph 30A of the statement of facts stated clearly the claimants claims. That all the reliefs inure to all the named claimants and the other retirees equally and commonly and arose out of the same transaction or series of transaction. Also that in Osinoiki v. Ilekun [2003] FWLR (Pt. 162) 1768, it was held that declaratory and injunctive orders are absolutely within the discretion of the court and the appellate court will not question the exercise of such discretion by the lower court merely because it could have exercised the discretion the other way round. The claimants pointed out that if the court can make the declaration that they are entitled to all their legitimate benefits due to them at the time the employment was brought to an end on 26 November, 2004 the court equally has the unfettered jurisdiction under Order 15 of the NIC Rules 2007 and section 19(d) of the NIC Act to make consequential orders directing the defendant to pay same to the claimants. That the mere fact that the claimants listed the areas of the underpayment by the respondent does not make it a separate claim, hence the word “e.g.” in the said paragraph 30A. The claimants also submitted that it will be greatly inconveniencing to both the court and the claimants and to the respondent in terms of cost, time, health and work load if all the named claimants and the others file separate actions seeking for the same ordinary declaratory or injunctive orders whereas one order from the court would have sufficed. That section 14 of the NIC Act 2006 provides as follows — The Court shall, in the exercise of the jurisdiction vested in it by or under this act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the court think just all such remedies whatsoever as any of the parties thereto may be entitled to in respect of any legal or equitable claim properly brought forward by the court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of these matters avoided. That is to say the Act enjoins this court to avoid multiplicity of legal proceedings concerning all matters in dispute between the parties. That Order 15 of the NIC Rules enjoins this court to comply with section 14 of the Act without undue reliance on technicalities, especially since this court is a specialized court set up to settle industrial and Labour disputes. According to the claimants, the respondent misconstrued their claim when the respondent’s counsel argued that the claim of the claimants was for the payment of shortfall in their retirement or out placement benefits, referring to Amachree v. Newington, (supra) and CCB Nig. Plc v. Mrs. Rose Amadi (supra) to support their contention. The claimants then urged this court to hold that their claim is for a declaration that they are entitled to the said shortfall and also an injunctive order compelling the respondent to compute the retirement benefits or work out the shortfalls. That it is when the respondent had computed the benefits that the issue of the short fall will arise and then any claimant who suffered the short flu will challenge the calculation based on the specific length of service, salary, cadre and postings etc. And that it is at that stage that the cases of v. Newington, (supra) and CCB Nig. Plc v. Mrs. Rose Amadi (supra) will be relevant and applicable because in that case the court held that the plaintiffs suffered differently and cannot claim joint damages in tort. But that in the instant case, the claimants are not claiming joint damages in tort or in contract. That their claim is in equity for a declaration of’ the court that they are entitled to certain benefits which the respondent is yet to work out based on details known to the respondent. The claimants further argued that in CCB Plc v. Rose Amadi (supra), the plaintiffs claimed their individual benefits hut in this case the claimants are claiming a declaration that they are entitled to their benefits which are yet to he worked out. That if the court refuses to grant the declaration then the issue of “different this or different that” in the CCB Plc case will have no place and vice versa. To the claimants, the cases of Smurthwaite v. Hanna (supra), Cater v. Rigby (supra) and P & 0 Steam Navigator v. Kijima (supra) cited by the applicant’s counsel are not applicable because their facts bother on damages for tort of negligence and not on contract. That the High Court Rules of Anambra State will not apply in the light of the existence of the NIC Rules 2007 which regulate this court. The claimants also contended that the case of CCB v. Rose Amadi (supra) was decided before the enactment of the NIC Act 2006 and that the usual technicalities associated with regular courts are not to he allowed in this court as the paramount concern in this court is to do substantial justice at all times as against over reliance on undue technicalities, referring to Order 15 of the NIC Rules 2007 and sections 13, 14 and 15 of the NIC Act 2006. Also that this court also has the powers to depart from the Evidence Act of common law in line with section 13, 14 and 15 of the 2006 Act and Order 15 of the NIC Rules, 2007. That by its nature, therefore, this court is not bound to follow the case of CCB v. Rose Amadi as that decision (though proper in view of the circumstances and law prevailing at that time) is inconsistent with and antithetic to the special purpose by which this court was established. To the claimants, it is due to the hardship suffered by the plaintiff’s in the CCB case (among others) that this court is in existence to ameliorate or extinguish. The claimants further invited this court to draw the distinction between “the terms of the contract of the claimants” and the conditions of service of the claimants”. To the claimants, while the terms of the contract differ from claimant to claimant, the conditions of’ service is one as regulated by the hand book and the collective agreement. That the word collective agreement as admitted in paragraphs 6, 9, 10, 11 , 12 and 16 of the respondent’s statement of’ defence indicates togetherness or commonness and so renders odious the argument and the authorities cited by the respondent’s solicitor’ in respect of misjoinder of parties and cause of action. That if the claimants collectively agreed, they can also collectively disagree. The claimants then urged the court to distinguish the authority of CCB Plc v. Rose Amadi (supra) and other similar authorities cited as it is not in tandem with the spirit of’ this court which is set up to settle industrial and labour disputes between the parties without regard to technicalities of the common law of torts or contract. Also that in the CCB case, the 15 plaintiffs different salary cadres, length of service, etc was unknown to the court. But in iii is ease the claimants plead in paragraphs 6 — 8 of the statement to facts that the salaries, cadres, length of service, etc of the claimants are known to the respondent and are not in dispute. And that this fact was admitted in paragraphs 7 — 8 of the respondent’s statement of defence and so this distinguishes this case with the CCB case and all other such authorities cited by the respondent. That this court is entitled to act upon the unchallenged, un—controverted and undisputed facts. The claimants then urged the court to hold that there is no misjoinder of parties or causes of action and to dismiss the respondent’s motion with cost because it is a delay tactics, an abuse of court process and cheating. There was no reply on points of law. We have carefully considered the submissions of the parties in this suit. The sole issue for determination by this court is whether this suit is bad for misjoinder of parties and causes of action since, to the respondent, the claimants do not have one common cause of action, interests and relief. While the respondent thinks the suit is had liar misjoinder, the claimants think otherwise. This court has severally permitted parties to sue in a representative capacity without even the necessity of seeking leave of court. As a matter of fact Order 4 Rule 2 of the NIC Rules 2097 simply requires the endorsement of the fact of suing in a representative capacity on the originating summons. Order 4 Rule 2 provides as follows — Where a claimant sues, or a defendant or any of several defendants is sued in a representative capacity, the originating process shall state that capacity. It is our view that this endorsement without more satisfies the requirement of suing in a representative capacity, which the claimants in this case have done. The principle governing joinder of parties to an action is that the respective claims of the claimants must show a common interest amongst them which entitles them to sue jointly. It is trite that the object of the rule of joinder of parties is to prevent multiplicity of action by enabling claimants to proceed in the same action against all persons whom they allege they have the same relief against and will be entitled to a share in the interest of the subject matter. On the principle governing joinder of parties to an action, the Court of Appeal in ECO Bank (Nig) Plc v. Gateway Hotels (Nig Ltd [1999] II NWLR (Pt. 627) 397 held inter that For a person or persons to be joined or made a party in an action it must be shown that the person is entitled to some share or interest in the subject matter of the suit or lays claim to such share or interest or is likely to he affected by the result of the action or is a necessary party or it is just convenient to join them. In any event, this court is permitted under section 37(3) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004 and section 12 of the NIC Act 2006 not to act in any formal manner if this is necessary in the interest of justice. And section 14 of the NIC Act is quite emphatic on the need to avoid multiplicity of actions when this court is adjudicating on mailers within its jurisdictional competence. Order 1 Rule 1(3) of the NIC Rules 2007 then goes on to enjoin that the attainment of a just, efficient and speedy dispensation of justice’ shall be the hallmark of the practice arid procedure of this Court. The cases cited by the respondent on misjoinder of causes of action and parties are all cases decided in respect of courts that do not have the permissiveness that provisions like sections 37(3) of the TDA, 12 and 14 of the NIC Act and Order I Rule 1(3) of the NIC Rules enjoin on this court. From their claims enumerated above, it can he seen that the claimants’ interest is common and the same. That is to say that each of them is individually entitled to Some share or interest in the claims. We note the fact that each of them could bring this action against the respondent hut asking eighty—nine persons to institute separate actions will no doubt he tedious and cumbersome. In any event, the court has the power to consolidate cases where the cause of’ action is similar. This court has at various times held that where it is just and convenient claimants can jointly sue the respondent as is been done in tills suit. See, for instance, the cases of Anthony Adekunle Oyekanmi and 6 ors (for themselves and on behalf of all other member of the National Association of Telecommunication Employees) v. NITEL Ltd. & anor, unreported Suit No. NIC/7/2008 delivered on 15 .luly, 2008, Mrs. G. I. Oyeleke & 4 ors v. NICON Insurance Plc & anor, unreported Suit No. NIC/14/2006 the ruling of which was delivered on 14th Nov. 2007 and Mr. Olabede Ogunyale & 64 ors v. Globacom Nigeria Ltd unreported Suit No. NIC/30/2008 delivered on 1st March, 2009, cases which are on all fours with the present suit. We have not been shown any reason why we should depart from these previous decisions. For the reasons given, we hereby hold that this case is not bad for misjoinder causes of action and of parties. The preliminary objection of the respondent consequently fails and is hereby dismissed. The case shall, therefore, proceed to hearing. We make no order as to cost. Ruling is entered accordingly. _____________________________ Hon. Justice B.B. Kanyip Presiding Judge ______________________ _____________________ Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J.T. Agbadu-Fishim Judge Judge