It was celebration galore for the 5000 sacked teachers yesterday
in court as the National Industrial Court of Nigeria, Uyo Judicial
Division struck out a motion filed by Sharon Eddie(esq), Counsel to the
Akwa Ibom State Government and other defendants challenging the
jurisdiction of court to hear the case brought before the honourable
court.
The motion by Sharon Eddie(esq) counsel to the Akwa Ibom State Government and other defendants which was purportedly filed on the 17th of February 2017 but served on other parties in open court on the 20th of February 2017 prayed the court to strike out the suit brought before the honourable court by the agreived teachers as the court lacks the jurisdiction to adjudicate on the matter on the following grounds:
1) That the Plaintiffs/Respondents lack the collective right to institute the case in a representative capacity.
2)That each of the plaintiffs/Respondents has a separate cause of action against the Defendants/Applicants.
To argue the points raised Sharon Eddie(esq) maintained that the motion is brought pursuant to Order 17, Rule 9 of the National Industrial Court of Nigeria Rules 2017.
The Counsel held that the sole feature that will prevent the court from hearing the case is that the Plaintiffs/Respondents have a personal right of action to establish as such cannot sue in representative capacity and as such not a proper party.
Citing Bemil Nigeria limited VS. Marcus Emmeribe $ ORS(2009), Sharon Eddie(esq) held that for the court to be competent and have jurisdiction over a matter, proper parties must be identified.
In other words, before an action can succeed, the parties to it must be shown to be proper parties to whom rights and obligation arising from the cause of action attach. Where the proper parties are not before the court, then the court lacks the jurisdiction to hear the suit.
Thus where the parties have personal right to sue, each of the Claimants has a cause of action against the Defendants and must bring a separate action to establish same.
Also, citing the case between Bossa VS. Julius Berger(2005), the Counsel held that in the realm of master and servant relationship, even though ten or more persons are given employment the same day, under the same condition of service, the contract of employment is personal or domestic to each of the persons.
Furthermore, in the instant case, as can be infer from the originating process, the claim before the court is for unlawful dismissal and for damages for each of the employees on the ground of breach of contract of employment.
The interest of each party is tied to his or her contract of employment with the Defendants and each of them must come forward to establish the contract of employment with the Defendants.
Accordingly, the implication is that in the event of breach of contract, such persons do not have a collective right to sue or be represented in the suit.
The Counsel submitted that the action cannot be maintained in a representative capacity considering the circumstances and facts of the case.
Furthermore, the Counsel held that if all the 5000 Plaintiffs are suing the Defendants in different actions, the fact that it will lead to too many trials in the court will still not compromise the position of the law that in a master and servant relationship, in this case, a case involving unlawful dismissal and breach of contract of the employments of the Plaintiffs by the Defendants, each of the Plaintiffs has a cause of action against the Defendants and must bring a separate action to establish same.
The Counsel further submitted that since all the Claimants in the suit representing the 5000 employees on whose behalf they sued have different interests, their different individual employment are personal and domestic to them and therefore there is no corporate interest sought to be protected. Each of them deserves to be allowed to pursue his cause of action against the Defendants independently.
Based the the above argument, Counsel to the Akwa Ibom State Government prayed the court to strike out the suit as it is incompetent and therefore deprives the court of the jurisdiction to hear the case.
In his reply, the Learned Counsel to the 5000 sacked teachers, Clifford Thomas(esq) presented three issues for determination:
1)Whether the National Industrial Court of Nigeria has jurisdiction to adjudicate on the suit
2)Whether the Claimants/Respondents have the right to institute this case in Representative capacity
3)Whether the Preliminary Objection of the Defendants/Applicants is competent before the court
In arguing his point, Clifford Thomas(esq) started by reproducing Order 17 Rule 9 of National Industrial Court 2017 which the State Counsel based her objection on, he proved to the court that there is no nexus whatsoever between the said rule of court and the Defendants application/prayers, pointing out that such is a practice aimed at insulting the sensibility of the court as it amounts to sheer waste of the previous time of the honourable court and as such, a lame attempt to delay the hearing of the matter on the merit while working extra hard to destroy the "res" and justice of the matter pending before the honourable court.
In arguing issue 1, the Learned Council to the Agreived sacked teachers reproduced Section 254 C (a), (d), (f), and (k) of the Constitution of the Federal Republic of Nigeria 1999, (as amended), the national Industrial Court of Nigeria exercises jurisdiction to the exclusion of any other Court in civil cases and matters.
The National Industrial Court of Nigeria has the Constitutional powers to exclusively assume jurisdiction over matters for which the Claimants/Respondents have brought before the honourable court.
He further supported his argument with Section 1 (3) of the Constitution of the Federal Republic of Nigeria 1999 which renders other conflicting laws against the Constitution null and void.
Citing the case between C.B.N VS. 'S.A.P. NIG. LTD (2005) and other relevant cases, the Counsel maintained that relevant materials to be considered by the Court in determining the issue of jurisdiction are facts deposed to in the Affidavit, the Complaint, the Statement of Claim where same has been filed and served. Incidentally, statement of defense cannot constitute relevant materials to be considered in issue for jurisdiction.
He therefore urged the court to hold that it has jurisdiction to hear and determine the suit.
In arguing issue 2, the Learned Counsel Clifford Thomas reproduced Order 4, Rule 2 of the National Industrial Court, Rule 2017, pointing out that the Defendants Counsel have by their argument clearly admitted that the Claimants have Rights and that those rights have been violated by the Defendants.
He maintained that representative actions are the most appropriate ways to bring contentions this nature before the court.
For him the issue here should rather be to test the capacity of the representative before proceeding to determine propriety of the action itself.
Pointing out relevant cases, like Bwari vs Oseni (1992), he maintained that representative actions are said to be properly done where those represented have a common interest, a common grievance and where the relief sought is in its nature, beneficial to all those whom the Plaintiff is representing.
For him, the Claimants represent 5000 teachers who underwent the same process of invitation to apply, the screening process, employed on the same day with appointment letters bearing the same commencement dates of their employment, with similar salaries, suffered the same fate of non-deployment, non-payment of their salaries and other entitlements, had their employment purportedly terminated on radio and other media of mass communication on the 30th day of October, 2016, and suffered other similar grievances from the Defendants.
The claimants from facts of this case and available exhibits have a common interest, common grievances, and relief sought is by nature beneficial to all 5000 teachers employed by the Akwa Ibom State Government in April, 2015. He held that instituting a different cause of action by the Claimants will amount to multiplicity of suit and therefore an abuse of court processes.
He therefore submitted that the named parties are the DOMINUS LITIS, representing 5000 teachers employed in April 2015 and prayed the Court to rule that the Claimants have the right to bring the action in representative capacity.
In arguing issue 3, the Learned Counsel to the 5000 sacked teachers Clifford Thomas(esq) produced Order 17,Rules 1 (1), (3), (5) of National Industrial Court Rules 2017, showing that the rule of court makes the Preliminary Objection of the Defendants to be incompetent, untenable and a blatant abuse of court process.
For him, the National Industrial Court rules stipulates that every Application, Notice or Exparte Motion, Preliminary Objection shall be supported by an Affidavit which entitles the Respondent to file a Counter Affidavit and that the Defendants offended the rule of Court when their application was filled without an Affidavit and outside any known rule court which should give the competence of making the Application in the first place.
He held that in failing to comply with the rules of court, the Defendants cannot be said to have come properly before the court, and cannot be heard, as sure, their Preliminary Objection is incompetent and a sheer waste of the previous time of the court.
In producing Order 15 Rule 1(1) the Learned Counsel maintained that the Defendants' Application is time barred as it was served 25 days after receiving the originating summons as against the 14 days stipulated by the Rule of Court.
The Defendants did not also seek the leave of Court for enlargement of time according to the rules, effluxed. This makes the application incompetent and should not be heard in the court.
Furthermore, the Learned Counsel to the 5000 sacked teachers Clifford Thomas (esq) produced Order 18, Rule 2(2), Order 30, Rule 19(1), Order 57, Rule 5(1) of the National Industrial Court Rules 2017 arguing that the Defendants apart from the attempt at ambushing the Claimants with a process that was not properly before the court, but was served in an open court on Monday 20th February 2017, the Defendants shamelessly attempted to hoodwink the court by serving a process that was not only out of time, but one that did not carry the endorsement of the Registrar of the Court, and did not also carry the seal of the Registrar, the date and time of filing the process. Other irregularities render the process incompetent and thus, should be thrown out.
He therefore urged the Court to hold that the Preliminary Objection of the Defendants is incompetent before the Court.
In ruling on the Preliminary Objection before the Court, Hon. Justice M. N. Esowe of the National Industrial Court held that the matter before the court is "lone" issue, - if the claimants have the right to sue in Representative capacity.
Justice Esowe started by defining Representative Capacity as a suit that carries "authorisation" from the affected persons. And in determining if the suit complied with authorization, the Hon. Justice M. N. Esowe answered in the affirmative.
Also, in the issue of commonness of purpose, the Hon. Justice maintained that when a matter is brought in representative capacity, the Claimants must have common interest, common grievance and the received sought must be beneficial to all. In determining if the suit complied with the above conditions, the Hon. Justice M. N. Esowe answered in the affirmative.
Hon. Justice M. N. Esowe further maintained that disputes of this nature is best brought by representative capacity as instituting different suits on the sub-head will amount to multiplicity of suit.
Based on the circumstances of the case, the Hon. Justice Esowe disagreed with all the prayers brought by Sharon Eddie(esq) Counsel to the Akwa Ibom State Government and agreed with all the prayers of Claimants Counsel Clifford Thomas(esq), therefore ruled in favour of the 5000 sacked teachers.
Hon. Justice Esowe adjourned the case to 29 of June for continuation of the suit
No comments: