DURBAR HOTEL PLC v. ITYOUGH & ORS (2016)

In The Supreme Court of Nigeria

On Friday, the 16th day of December, 2016

SC.174/2010

Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria


Between

DURBAR HOTEL PLC  –Appellant

AND

1. MR ABELLA ITYOUGH
2. MR BONIFACE ONU
3. MALLAM SHEHU ABDULLAHI
4. MAURICE DACHELEM
5. MR. JOHN IKPITA
(Suing for and on behalf of about 300 Staff of Durbar) –Respondents

…………………….A…………………….

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): This is an appeal from a decision of the Court of Appeal (Kaduna Division) which affirmed the decision of a Kaduna High Court which held that the respondents properly brought this action in a representative capacity. The facts are these, the respondents and about two hundred and ninety-five persons were former employees of the appellant. The appellant in the month of May, 1997 closed down its operations to carry out major renovation work in the appellant Hotel, and directed the respondents to go on six months compulsory leave. The respondents say that they were sent away without their entitlements paid to them. By their amended statement of claim the respondents claim against the appellant the following reliefs:(a) A Declaration that the defendant 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 determination 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 actions of defendant had caused the plaintiffs serious untold mental, physical, psychological and social inconvenience and embarrassment.
(c) An order awarding the plaintiffs against the defendant, the sum of N500,000,000.00 (Five Hundred Million Naira only) as general and aggravated damages for the gross violation of the terms of employment and conditions of service as well as the serious inconveniences, hardship and embarrassment caused the plaintiffs.
OR IN THE ALTERNATIVE
(d) An Order directing the defendants to terminate the plaintiffs appointment with the defendant in accordance with the terms and conditions of their appointment with the 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).

The plaintiffs/respondents in proof of their case called six witnesses and closed their case on 9/2/2005. Rather than open their defence, the defendant/appellant filed a motion on Notice on 24/11/2005 for the following reliefs:
(a) the plaintiffs/respondents lack the capacity to institute this action in a representative capacity.
(b) the action is not properly instituted.

On 2/2/2006, the learned trial judge heard submissions from counsel on the motion and in a considered Ruling delivered on 24/2/2006 examined the principles governing representative actions and had this to say:
I am satisfied that the principles laid down in the case of Busari v. Husseni (1992) 4 NWLR (Pt. 237) p. 557 has been satisfied by the plaintiffs via their claim. Consequently therefore, the application fails and is hereby dismissed.

Dissatisfied with the Ruling, the defendant/appellant filed an appeal. On 21/4/2009, the Court of Appeal affirmed the decision of the High Court when it said:
I am quite in support of the ruling and decision of the Court below that the respondents has satisfied the conditions laid down in Olatunji v. Registrar Co-operative Society (supra) and Busari v Oseni (Supra) in bringing this suit in a representative capacity. I so hold.

This appeal is against that judgment. In accordance with the Rules of this Court, briefs of argument were filed and exchanged. The appellants brief was filed on 27/7/2010, while the respondents brief was filed on 14/9/2010.
Learned counsel for the appellant, Mr. R.O. Atabo formulated a sole issue for determination. It reads:
Whether the respondents action is properly instituted and whether they can maintain action in a representative capacity.

Learned counsel for the respondent also formulated one issue for determination:
Whether the lower Court was right in its decision that the respondents action was properly constituted and can be maintained in a representative capacity.

Both issues ask the same question, and it is whether the respondents action is properly constituted In view of this observation, the issues formulated by the appellant shall be considered in resolving this appeal.
At the hearing of the appeal on 10 October, 2016, learned counsel for the appellant Mr. R.O. Atabo adopted the appellants brief filed on 27 July, 2010 and urged us to allow the appeal. Learned counsel for the respondents, W. Shittu adopted the respondents brief filed on 14 September, 2010.
Relying on Anatogu v. A.G East CS and Anor (1976) 11 SC p.109 he urged this Court to dismiss the appeal.
…………………….B…………………….
ISSUE FOR DETERMINATION
Whether the respondents action is properly constituted and whether they can maintain the action in a representative capacity.

Learned counsel for the appellant observed that the respondents entered into different contracts of employment with the appellant, further, observing that their salaries and allowances are different.
He submitted that in the event of event of breach by the employer, the employees do not have collective right to sue or be represented in the suit. Reliance was placed on Abdul Kadir & Ors v. Smith (1973) 8 NSCC p. 407,Ayinde v Akinji (1988) 8 NWLR (Pt.68) p. 70.
Order 11 Rule 1 of the High Court (Civil Procedure) Rules 1987 of Kaduna State.
Concluding, he observed that the respondents action was not properly commenced and so representative action does not avail the respondents.
Learned counsel for the respondents observed that if one looks at the claim of the respondents, it would be seen that they all had a common interest and grievance in that they were praying the trial Court to order the appellant to pay their salaries and entitlements and if their services were no longer required, their appointments should be formerly terminated, contending that the relief sought is beneficial to the entire staff of the appellant. He submitted that the respondents were right in the circumstances to have brought their case in a representative capacity. Reliance was placed on Olatunji v. The Registrar Co-operative Society (1968) NMLR p. 393, Ofia v Ejem (2006) 26 NSCQP (Pt. 2) p. 877, Atanda & Anor v. Akunyun & Ors (1988) 3 NSCC p. 10.

He urged us to dismiss the appeal and affirm the decision of the Court of Appeal.
This is an interlocutory appeal. After the respondents as plaintiffs closed their case, the defendant/appellant filed a Motion on Notice in the trial Court contending that the respondents as plaintiffs were wrong to bring this suit in a representative capacity. The appeal is thus concerned with whether the respondents as plaintiff were correct to bring their action in a representative capacity.
It has long been well settled that where a suit is not properly constituted, the Court is denied jurisdiction to entertain such a suit. Indeed in Madukolu & Ors v. Nkemdilim (1962) 2 NSCC p. 374.
This Court per Bairamian JSC made some observation on jurisdiction and the competence of a Court when His Lordship said that a Court is competent when-

1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court form exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See also SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt. 1) p. 86, NNPC v. Klifco Nig Ltd (2011) 4 SC (Pt. 1) p. 108 Obiuweubi v. CBN (2011) 2-3 SC (Pt. 1) P. 46, Dangana & Anor v. Usman & 4 Ors (2012) 2 SC (Pt. III) p. 103.

It is on record that the respondents applied for leave to sue in a representative capacity and were granted leave by the learned trial judge. There is no appeal from that order. Where there is no appeal against a finding or order of a Court, such an order e.t.c. remains valid and binds the parties to the suit. The order that the respondents and plaintiffs can sue in a representative capacity is inviolate until set aside.
After examining Atanda & Anor v. Akunyun & Ors (1988) 3 NSCC p. 10, Busari v. Oseni (1992) 4 NWLR (Pt. 237) p. 557 and examining the respondents claim the Court of Appeal agreed with the decision of the learned trial judge that the respondents were right to bring this suit in a representative capacity. In my view, the respondents were correct to bring their action in a representative capacity.
Order 11 Rule 8 of the High Court (Civil Procedure) Rules 1987 of Kaduna State provides as follows:
Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the Court be authorized by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.
A representative action would be most appropriate when many people who have a common right and interest intend to sue in an action involving their right. Order 11 Rule 8 supra, and indeed most, if not all Rules of Court provides for one or more of these people to sue or be sued as representatives of the others. A representative action is thus a suit brought by one or more persons representing others with a common interest in the cause of action.
Once the relief/s is what all the named plaintiffs/representatives seek, it would be difficult and most frustrating, and a waste of judicial time to file several suits when one suit by representative action would suffice. Those representing or those represented are bound by the decision of the Court.
In Olatunji v The Registrar Cooperative Society (supra), the requirements which a party who wishes to sue in a representative capacity were very well spelt out. They are:
1. There must be numerous persons interested in the case or the side to be represented:
All those interested must have the same interest in the suit, that is their interest must be joint and several.
2. All of them must have the same grievance.
3. The proposed representative must be one of them and
4. The relief or reliefs sought must be in its nature beneficial to all the persons being represented.

See also Busari v Hussein (1992) 4 NWLR (Pt. 237) p. 557.
The trial Court had no difficulty in finding that the respondents as plaintiffs were correct to bring this suit in a representative capacity. The Court said:
I agree that there is privity of contract with each plaintiff, but state that for each plaintiff, the defendant has the duty to pay salaries. That is a factor that is common to all of them and that is what they are complaining of and that same has not been paid to any of them since 1997. I do agree with Mr. Ibanga that this suit is not claiming that defendant has terminated their employment; in-fact by their alternative prayers it is the plaintiffs who are urging that the defendant should formally terminate their employment with it.

Concluding, the trial Court went on to say:
I am not therefore able to be with the learned defendants counsel that the plaintiffs ought to individually initiate an action against the defendant as it is a constructional matter strictly between each plaintiff and the defendant. I am satisfied that the principles laid down in the case of Busari v. Hussein (supra) has been satisfied by the plaintiffs via their claim.”

…………………….C…………………….

Agreeing with the reasoning of the trial Court, the Court of Appeal said:
I am in total agreement with the above findings of the Court below. I also agree with the submission of the learned counsel for the respondents that since the respondent had sought for and obtained leave of the lower Court to sue in a representative capacity and the appellant’s not having appealed against the said order of Court, they cannot be heard to complain while that order is subsisting. I am quite in support of the ruling and decision of the court below that the respondents had satisfied the conditions laid down in Olatunji v Registrar Co-operative Society (supra) and Busari v Hussein (supra) in bringing this suit in a representative capacity. I so hold.

The scope of Order 11 Rule 8 of the High Court (Civil Procedure) Rules 1987 of Kaduna State allows many people with a common right which is invaded by a common adversary to seek leave of the Court to join in attacking that common adversary in respect of the common right provided the essential conditions/requirement set out in the rule are satisfied.
My Lords, the respondents were relieved of their duties without being paid their due entitlements. They all thus have a common interest and the same grievance. The reliefs claimed are beneficial to all the persons being represented, and they all have the authority of the group to institute the action since no one of them objected to the suit. On these facts and reasoning, there can be no doubt that a representative action is most appropriate in the present case. I am in complete agreement with both Courts below that the respondents suit was properly brought in a representative capacity. Both Courts below are in the circumstance correct.
Appeal is hereby dismissed.
It is hereby ordered that trial in the High Court shall proceed forthwith. Nothing must be left undone that should have been done.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned brother Rhodes-Vivour JSC with whose reasoning and conclusion I entirely agree that the appeal lacks merit.
The appellants herein had challenged the jurisdiction of the lower Court to proceed on the grounds that the respondents cannot maintain the action in their capacity as representatives of the other claimants. Both Courts below adjudged appellants motion urging them to hold the action commenced by the respondents improperly constituted unmeritorious. I am unable to fault the two decisions.
Order 11 Rule 8 of the Kaduna State High Court Rules, the trial Court, Provides:-
“8. Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the Court, be authorized by the other persons interested to sue or defend in such suit for the benefit of or on behalf of all parties so interested.
It is glaring from the foregoing rules of Court that an action in a representative capacity may only be instituted or defended by persons with interest common to those on whose behalf the action is instituted or defended.
In dismissing appellant’s motion, the trial Court, in its ruling dated 24th February, 2006, held as follows:-
“I am satisfied that the principles laid down in Busari v. Hussein (1992) 4 NWLR (Pt 237) 557 has been satisfied by the plaintiffs via their claim.therefore, the application fails and same is hereby dismissed.”
The lower Court in affirming the trial Court’s foregoing ruling held as follows:
I am quite in support of the ruling and decision of the Court below that the respondents has (sic) satisfied the conditions laid down in Olatunji V. Registrar Cooperative Society (supra) and Busari v. Oseni (supra) in bringing this suit in a representative capacity. I so hold.”
In interpreting rules of Court similar to those of the trial Court in the instant matter, this Court in Anatogu & Ors V. A.G, East Central State & Ors (1976) 11 SC 59 held:
“The scope of Order 4 Rule 3 of the High Court Rules allows all persons having a common right which is invaded by a common opponent to seek approval in respect of the common right provided the essential conditions set out in the rules are satisfied.”
In the case at hand, the lower Court is entirely right in affirming the decision of the trial Court dismissing appellants objection having held that being of common interest, the appellants are allowed to pursue their claim in a representative capacity. Both Courts that bind themselves to the decision of this Court governing the issue before them, certainly, cannot be wrong. I so hold.
It is for this but more so the detailed reasons outlined in the lead judgment that I also dismiss the appeal. I abide by the consequential orders made in the lead judgment.

…………………….D…………………….
CLARA BATA OGUNBIYI, J.S.C.: The only issue raised in this appeal and agreed upon by all parties was:-
Whether the respondents action is properly instituted and whether they can maintain the action in a representative capacity.
It is clear on the record that the trial Court had earlier granted the respondents leave to sue in a representative capacity and there is no evidence that an appeal was lodged against the leave so granted. It is now too late in the day for the appellant to complain at this stage.
The totality of this appeal is hereby adjudged without any merit. I agree and adopt the judgment of my learned brother Rhodes-Vivour, JSC and also dismiss the appeal and order that the trial in the High Court shall proceed forthwith.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my Lord, Rhodes-Vivour, JSC, just delivered now. I entirely agree with the reasoning and conclusion
As my Lord held in the leading judgment, a representative action is the most appropriate when many people, who have a common right and interest intend to sue in an action involving their rights. Only recently, this Court had occasion to chart the trajectory of representative actions. Hence, in Apeh and Ors v PDP and Ors (2016) All FWLR (pt 824) 1, 13, the Court [per Nweze, JSC] explained that:
As with all rules which eventuated from equity’s attention of the rigidity of the common law, the species of actions known as representative suits were evolved for the relaxation of the Complete Joinder rule under the common law, F. Nwadialo, Civil Procedure in Nigeria (Second Edition) (Lagos: University of Lagos Press, 2000) 110 et seq.
Under the old common law practice, all parties who were interested in a suit, were required to be present in Court so that a final end might be made of the controversy, per Lord McNaughton in Duke of Bedfold v Ellis A. C, 1, B, (H.L) (P.C). Unarguably, the rules were too rigid for practical purposes when they had to be applied to societies or groups. The Taff Vale Railway Company v, Amalgamated Society of Railway Servants (1901) A.C. 426 (H L ).
Characteristically, equity in response evolved its own rules which were adapted to meet the difficulties presented by a multiplicity of persons interested in the subject matter of litigation. Accordingly, the rules of equity allowed some of such persons to sue on behalf of themselves and all others having the same interest. Understandably, this was done to prevent a failure of justice. The Taff Vale Railway Company v. Amalgamated Society of Railway Servants (1901) A.C. 426 (H.L).
In his notable reconstruction of principles akin to the above, which Lord Penzance had articulated in Wytcherley v. Andrews (1871) L. R. 2 P and D at 328, Lord Denning, in Abuakwa v. Adanse (1957) 3 All ER 559, 563 quipped that it was a rule founded on justice and common sense’ for all persons with the same interest to regard the partly named on the Writ as their champion If he wins, they reap the fruit of victory. If he fails, they fall with him and must take the consequences. These are the basic principles on which representative actions are founded
The rule was that, if the plaintiff sued, or any of the defendants was sued, in a representative character, this must be stated on the Writ, and must also appear it the title or heading of the Statement of Claim, Re Tottenham(1896) 1 Ch 628. However, in such representative suits, both the named plaintiff and the un-named parties, that is, those they represent are parties to the action; the only difference is that the named plaintiff, as it were is in control of the suit (dominus litis) until the matter is disposed with at first instance, Okotie v. Olughor (1995) 5 SCNJ 217, 226; Ekennia v Nkpakara (1997) 5 SCNJ 70, 88.”

It is for these, and the more detailed reasons in the leading judgment that I endorse the conclusion of the lower Court which affirmed the decision of the trial Court, that the respondents’ suit was properly brought in a representative capacity. Accordingly, I enter an order dismissing this appeal as lacking in merit. I abide by the consequential orders in the leading judgment
AMIRU SANUSI, J.S.C.: I had the opportunity of reading the judgment of my learned brother Rhodes-Vivour, JSC just delivered and am in total agreement with his reasoning and conclusion which I also adopt as mine.

…………………….E…………………….

The narrow issue in this appeal is whether the suit filed by the respondents in representative capacity was competent. In this case, the respondents as plaintiffs at the trial Court, filed the action in representative capacity simply because as many as they were, they were relieved of their duties without being paid their entitlements by the defendants now appellants. They have same grievances and common interest. The relief(s) they claimed were also applicable to all of them and if granted by the trial Court, will satisfy their interest.
The essence of a representative action is mainly to curtail multiplicity or influx of suits on the same interest or matter. Such representative action is competent once the person being represented and the persons representing them have common or same interest in the same action. SeeAdeleke v Anike(2006)16 NWLR (pt.1004) 162; Nwangana vs Hyende (1992) 8 NWLR (pt. 258) at 192. Suffice it to say and it is also trite law, that the rules governing representative action is a rule of convenience and must be treated with some air of flexibility and liberality and not with rigidity. See Ejezie v Nwabeze (2008) 4 SCNJ 113; Anatogu vs AG of East Central State(1976) 11 SC 109 or (1970) 11 SC (Reprinted) 59.

The learned trial judge after duly considering the rules applicable in representative capacity action and the surrounding circumstances that informed the plaintiffs now respondents to bring their action under representative capacity found as below:-
“I agree that there is privity of contract with each plaintiff, but that for each plaintiff, the defendant has the duty to pay salaries that is a factor that is common to all of them and that is what they are complaining of and that same has not been paid to any of them since 1997. I do agree with Mr. Ibanga that this suit is not claiming that defendant has terminated their employment in fact by their alternative prayers, it is the plaintiffs “who are urging that the defendant should formally terminate their employment with it.”
The trial Court also found, rightly too, that in the circumstance, the plaintiff should not each bring individual action or claim. That reasoning is in tandem with the principle of bringing representative action which is to forestall bringing multiplicity or influx of cases on same interest or claim and on same subject matter. The lower Court, rightly in my view, did not hesitate in affirming or endorsing the trial Courts finding as reproduced above. I can not agree more with the findings of the two lower Courts.
As a corollary, I am in entire agreement with the two lower Courts’ findings that the suit filed before the trial Court on representative capacity by the plaintiffs now respondents is competent. Since the appellants attempted to scuttle the progress in the hearing of the suit by the trial Court, albeit without success, it is my order that the plaintiffs’ instant appeal having failed, the suit should be remitted to the trial Court for it to hear it freshly.
Thus, for these few comments and for the detailed reasoning and conclusion reached in the leading judgment of my learned brother Rhodes-Vivour JSC, I also see no merit in this appeal. It is hereby dismissed by me. I abide by the consequential orders made in the leading Judgment.

Appearances

R.O ATABO with L.M AMENGA-AMUDA (MRS) and J.S. AGADA-  For Appellant

AND

W. SHITTU with I.D ACHI (MISS) O.D ATOYEBI and S. NNAJI (MISS) – For Respondent

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