Durbar Hotel Plc V. Mr. Abella Ityough & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Kaduna State presided over by Hon. Justice Esther Inuwa which ruling was delivered on the 24th day of February, 2006 wherein the court dismissed the Appellant’s motion on notice dated the 24th day of November, 2005 which sought to strike out or dismiss the Respondents’ suit for want of capacity to sue and for the suit not being properly constituted. A brief facts of the case shall suffice. The Respondents who were plaintiffs in the court below, numbering about 300 are employees of the Appellant.

Sometimes in April, 1997, the Appellant directed the Respondents to proceed on a six (6) months compulsory leave to enable the Appellant carry out some renovation works in the Appellant’s property. Since the Respondents were asked to go on six months compulsory leave by the Appellant till date, the Appellant has not paid the Respondents their salaries and allowances. As a result of this, the Respondents filed this suit against the Appellant for and on behalf of the 300 staff of the Appellant claiming the following reliefs:-

(a). “A declaration that the defendants’ action in keeping the plaintiffs away from duty at the defendants’ premises indefinitely as from May, 1997 till date without paying them any amount whatsoever and without due termination of their contracts of employment with the defendant is wrongful, illegal and a gross violation of the terms and conditions of their employment.

(b). A declaration that the said action of the Defendant had caused the plaintiffs serious untold mental, physical, psychological and social inconveniences, hardship and embarrassment.

(c). An order awarding the plaintiffs against the Defendant the sum of N500,000,000.00 as general and aggravated damages for the gross violation of the terms of employment and condition of services as well as the serious inconviences, hardship and embarrassment to the plaintiffs or IN THE ALTERNATIVE.

(d). An order directing the Defendant to terminate the plaintiffs appointment with the defendant in accordance with the terms and conditions of their appointment with defendant and for the defendant to pay the plaintiffs their salaries and other fringe benefits from May, 1997 till the order of the termination of their appointment totaling N220,000,000.00 (Two Hundred and Twenty Million naira only).”

After the Respondents as plaintiffs had closed their case and the matter adjourned for defence, the Appellant filed motion on notice dated 24/11/05 wherein it prayed for:-

(a) “An order striking out/and or dismissing this suit;

(b) And for such order or other orders as this court may deem fit to make in the present circumstance.”

The grounds for the application are that the Respondents as plaintiffs lack the capacity to institute the action in a representative capacity and that the suit was not properly constituted. After hearing argument from both parties, the learned trial Judge ruled that the Respondents’ action was properly constituted and that in the circumstances of the case, the Respondents can bring the suit in a representative capacity.

Dissatisfied with the said ruling the Appellant filed notice of appeal dated 2/3/06 on the same date. The notice of appeal contains only one ground of appeal. From the lone ground of appeal, the Appellant has formulate one issue for the determination of this appeal as follows:-

“Whether the Respondents’ action is properly constituted and whether they can maintain the action in a representative capacity.”

The learned counsel for the Respondents has however, distilled two issues from this one ground of appeal. The issues are:-