• Nwakhoba vs. Dumez Nigeria Ltd., Ajaokuta
  • 179
  • 2003-11-03
  • ₦ 200
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Nwakhoba vs. Dumez Nigeria Ltd., Ajaokuta





( For themselves and on behalf of the Dumez Nigeria Limited Ex- Security workers whose appointment were  terminated between 1989 and December 1994)






ZAINAB ADAMU BULKACHUWA, JCA ( Read the Lead Judgment )




ACTION - Declaratory relief - Plaintiff claiming - Duty of to lead evidence to establish same

ACTION - Representative action - Grant of an ex parte application of the plaintiff to sue in a representative capacity - Whether a proof of common interest in the plaintiffs

ACTION - Representative action - Maintenance of - Conditions precedent thereto

APPEAL - Exercise of discretion of the trial court - When appellate court would interfere therewith

COURT - Binding declaration - Power of court to make when a consequential relief has not been made or is abandoned

COURT - Declaratory judgment - Discretionary power of court to make -  How exercised

COURT - Exercise of discretion of the trial court - When appellate court would interfere therewith

JUDGMENT AND ORDERS - Declaratory judgment - Discretionary power of court to make - How exercised

JUDGMENT AND ORDERS - Declaratory judgment - When can be obtained

JUDGMENT AND ORDERS - Declaratory order - Binding declaration Power of court to make when a consequential relief has not been made or is abandoned

PARTIES - Whether party can profit from its wrongdoing

PRACTICE AND PROCEDURE - Parties - Whether party can profit from its wrong doing


1.             Whether an order of dismissal was, in the circumstance, the right order to make.

2.             Whether or not the number of plaintiffs who may benefit under the present action can exceed those on the list of 50 names approved by the learned lower court under the application ex parte filed by plaintiffs on 10th August, 1995.

3.             Whether exhibit 9 is a bar to the claim of the plaintiffs.

4.             Whether the plaintiffs had a common interest in the suit.


Each of the appellants, who have sued in a representative capacity, at one time or the other, during the relevant period between 1989 and 1994 worked as a security officer in the employment of the respondent and has had his employment terminated for one reason or the other i.e. by resignation, dismissal or retirement. It was the policy of the respondent that its security workers worked 12 hours each day inclusive of Saturdays, Sundays and Public holidays. The appellants’ security officers allege that they were paid basic salaries at the end of each month which contained no element of allowance for overtime. Therefore, the security officers had since 1989 agitated and claimed that no employee in the security section of the respondent was paid overtime wages and medical arrears as per National Joint Industrial Council (N.J.I.C) conditions of service for building construction workers for period worked in excess of 8 hours on week days and for hours worked on Saturdays, Sundays and Public holidays. Eventually, the respondent yielded to the agitation and agreed to the claim of its employees that security staff are entitled to overtime worked during January 1989  to December 1994. It was their agreement during negotiation that the respondent would only pay for 18 months out of the period in issue and that payment would be made only to serving officers. The appellants who had left the service of the respondent made claims to their right to receive the unpaid arrears, but the respondent denied their right to such payment on the ground that the appellants were not covered by the negotiations between the respondent and the union of the existing workers. Hence, the appellants sued the respondent in the lower court claiming entitlement to the short payment arising from the overtime and medical arrears paid to their colleagues between 1989 to 1994.

At the conclusion of trial, the learned trial Judge in her ruling, made the following relevant findings upon which it dismissed the claims of the appellant. (a) That the list of plaintiffs approved for representation is as per exhibit 3 which is identical with exhibit A in the annexure to the ex parte application for representation of plaintiffs approved by the court. (b) The number of hours of overtime that amounted to the respective claims listed in exhibit 5 is an essential ingredient in plaintiffs’ claim. The claims of the plaintiffs in exhibit 5 not only fail to specify the respective hours of overtime or medical arrears, the claims of each plaintiff differs one from the other and the plaintiffs have each failed to establish by evidence the quantum of their respective entitlements. (c) Since plaintiffs have not sought a relief declaring exhibit 9 as null and void, plaintiffs’ claim cannot succeed. (d) The statement of defence offends against Order 24 rule 1; Order 25 rules 6, 13 , and 14 of the Kogi State High Court (Civil Procedure) Rules,  1991 with regard to demurrer, failure to be specific on allegation, general and evasive denial of facts and failure to answer points of substance.

Being aggrieved, the appellants appealed to the Court of Appeal which in hearing the appeal considered sections 7(1) and 13(1)&(2) of the Labour Act, Cap. 198 LFN 1990 which provide:

“7(1) Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying -

(a)           the name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed;

(b)          the name and address of the worker and the place and date of his employment;

(c)           the nature of the employment;

(d)          if the contract is for a fixed term, the date when the contract expires;

(e)           the appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to section 11 of this Act;

(f)           the rates of wages and method of calculation thereof and the manner and periodicity of payment of wages;

(g)           any terms and conditions relating to -

(i)             hours of work, or

(ii)           holidays and holiday pay, or

(iii)         incapacity for work due to sickness or injury, including any provisions for sick pay; and

(h)          any special conditions of the contract.”

Section 13(1) and (2) provide thus:-

“13(1) Normal hours of work in any undertaking shall be those fixed -

(a)           by mutual agreement; or

(b)          by collective bargaining within the organization or industry concerned; or

(c)           by an industrial wages board (established by or under an enactment providing for the establishment of such boards where there is no machinery for collective bargaining.

(2) Hours which a worker is required to work in excess of the normal hours fixed under subsection (1) of this section shall constitute overtime.”