PARTIES

Why are parties to an action important?

• The matter will be struck out if the proper parties are not there
• The court will not be able to exercise its jurisdiction
• Parties need to be stated properly or the correct parties need to be brought so that they will be bound by the judgment of the court. This is the most important factor; the right parties need to be bound by the judgement. If the right party is not included, then the judgment will not be binding on him.
• So the parties names can be included in the writ of summons

 

Designation of parties

There are different designation of parties depending on the action they’re bringing before the court

• Plaintiff (Abuja) /claimant (Lagos) v defendant
• Applicant v respondent – if you’re bring an application, originating motion, motion ex parte etc. then the person bringing the application is applicant
• Petitioner v respondent

 

Can a party be both claimant v defendant? See Ude v Uwangwu (1995) 9 SCNJ P.41. A party can be defendant and applicant in the same suit and it will be written as defendant/applicant. In civil litigation there must be two or more person, one person can’t play the two roles- this was stated in the case of Ude v Uwangwu. One person can’t play the major role.

 

It is important to state out names of parties and capacity in which they are suing or being sued. If the names are not stated properly the case will be struck out.

 

The jurisdiction of the court is contained in the heading. A suit number is the number that is given to an action when the action is filed in any of the court. The defendant will always be below.

 

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO: LD/11/2014

BETWEEN:

 

1. ADE OLOWO………… CLAIMANT

 

AND

 

CHIEF ONIGBESE…………. DEFENDANT

 

Types of parties

Parties are categorised into 4 different groups and the categorisation will be based on the level of interest in the cause of action

• Proper parties - See Green v Green (1987) 3 NWLR (PT.61) P.480 at 483. – The case of green v green defines the parties. The cases says proper parties are parties who have no interest in the subject matter in dispute and the judgment of the court will not affect them however they are made parties because of a particular role they have played in the matter. Its simply because of the role they have played that they are a made a party. In the case he brought an action against the kingmakers in the village to allow him ascend the throne as he was the popular elect of the villagers. The action was simply for an injunction against the kings makers. Solomon green was just another contestant, the judgement did not affect him, the case could have simply been settled against the kingmakers, and so Solomon was a proper party, not a necessary party or even a desirable one. Read the case, its very instructive. Green v green is a superior authority to Efevwerhan’s opinion in his book.
• Desirable parties - Green v Green (supra); Peenok Investment Ltd. v Hotel Presidential (1982) 12 SC p.1 – these are those parties who don’t have a large interest in the matter however they may be affected by the judgement of the court. Nonetheless the court may give judgment even without them being in court or being joined; they are not so vital. In the case of Peenok it was a landlord-tenant relationship, Peenok was the landlord and they gave out a long lease to hotel presidential, who were paying them rent, hotel then stopped paying rent, peenokwent to court to recover possession and repayment of the rent owed for the use and possession of the property. The hotel claimed they were no longer their landlord, that Enugu state government had acquired the property and they couldn’t pay them rent. The hotel raised an objection saying that the parties before the court were not properly instituted that peenok ought to have joined the Enugu state government before instituting the case. The cause of action was payment of sums owed, the court held that it was not necessary to join Enugu state because they are not a party but it was only desirable to join them becausein making the judgement the court will make a pronouncement on the validity of the edict that they used to acquire the land back. The edict however would not have been used to determine if there was landlord and tenant relationship, so they were merely desirable parties.
• Nominal Parties. Padawa v Jatau (2003) 5 NWLR (pt.813) p.247 at 275 – they have no interest in the matter but they are made a party by virtue of the office they occupy/hold and in order to avoid procedural defect they are included.

When instituting an action against nominal parties you must be careful, nominal parties comes out in exam frequently.

• Necessary parties. See Green v Green (supra); Peenok Investment Ltd v Hotel Presidential (Supra) – this is a party that must be made a party to the action in order for the court to completely, effectually and logically decide a case. The court cannot completely effectually decide a case without these parties, without them justice cannot be done. Also it important they are included in the action so that the judgment of the court will be binding on them.

 

 

 

Capacity to sue and be sued

This means the legal status a person has in bringing the action. This is different from locus standi.

Who can sue and be sued?

• Only Natural & juristic person (or persons known to law) can sue and be sued. Shitttu v Ligali (1941) 16 NLR p.21. See also; Agbonmagbe Bank Ltd v GM G.B Ollivant Ltd (1961) All NLR p.116 @ 118 – the bank instituted an action against the general manager of G.B Ollivant Ltd, the court said the general manager is not a juristic person and is not known to the law, the juristic person was G.BOllivantand it was G.B Ollivant who can sustain an action in its name, so the matter was struck out. A person who doesn’t posses the legal capacity to sue and be sued cannot sustain an action, and the matter will be struck out. A legal person known to law has to be used for an action to be brought to court.
• Compare with Okechuku & Sons v Ndah (1967) NMLR p.366 – There were no legal person known to law in the case, the action was brought in the name of Okechuku and sons trading stores, which was a registered business name,however this is not a juristic personality. The other side raised an objection saying Okechuku and sons trading stores is not known to law and have no legal capacity, Mr Okechuku then quickly brought an application for amendment of name to Mr Okechuku trading under the name of Okechuku and sons trading stores, the court accepted the application. The reason is that although a business is not a juristic person they are however known to the law because they are registered, and the law simply says you can’t sue in that name, so the matter was not struck out.

There are two different things – where an action is brought using the wrong name, in this case the court will treat it as a misnomer which is capable being corrected as the person is known to law, and one where a personwho is not known to law or in existence and has no legal capacity, brings an action to court, in this instance the matter will be struck out. 

Also at the time of instituting an action the natural or juristic person must be living or in existence

 

Who is a juristic person?

• Artificial person: Government, statutory bodies, companies, registered trustees, incorporated trustees.
• Apart from natural & juristic person are there other classes of person who can sue and be sued? Yes other classes of persons who can sue or be sued include:-

1. Estate of deceased: Order 13 rule 11 Lagos; order 10 rule 15 Abuja. Where the deceased dies intestate there will be an administrator /administratix, but where he dies testate a person will be suing the executor/executrix. Any action for a deceased is instituted on or against their personal representative.

Example: SeunJimoh and TolaJimoh are the executors of Chief Jimoh who has died and they want to recover from his tenant,  Adachike.

If the matter was instituted in Lagos the draft will look like 

 

• SeunJimoh
• TolaJimoh

(Suing as executors of chief Jimoh deceased)  ………  claimant

 

1. Statutory bodies: Ibrahim v Judicial service Commission (1998) 12 SCNJ p.255 @ 274 – because they are created by statute they have been given an enactment to sue in their statutory names e.g. NNPC, Council of Legal Education. The statute creating them always gives them power to sue and be sued, so they can sue and be sued in their statutory names.

 

1. Government - they can sue and be sued. When sued in a civil action they are sued in the name of AG of the federation, or AG of the state. An action against the house of assembly will be against the speaker of the house of assembly. An action against the speaker of the house of rep will be against the speaker of the house of rep.

 

1. Firms of partnership:- they can sue or be sued in 3 different ways:
2. In the firms registered name or name of the partnership. Order 13 rule 24 Lagos; order 10 rule 10(1) Abuja;
3. All the partners of the firm jointly in their individual names – this is because the liability of a partnership is joint.

• One or more of the partners as representatives of the firm/partnership; Iyke Med merchandise v Pfizer Inc. (2001) 10 NWLR (Pt. 772) p. 540; k. Marki v Hassan Said

Again because their liability is joined they can be sued jointly or severely, the danger however in picking a few of them is that the judgment given is only binding against those selected.

Any party to an action can apply to the judge for a statement of the names and addresses of the persons who were partners when the cause of action arose on oath or as the judge may direct. Order 13 rule 24 Lagos; Order 10 rule 10(2) Abuja

 

1. Trade Unions: Nigerian Nurses Ass V A.G Fed &ors (1981) 11 – 12 SC p.1 All trade unions are registered under the trade union Act and because of this they can be sued or sue in their name.

 

1. Registered Associations: see Bambe v YesufuAderinola (1977) 1 SC p.1

Note: they are sued as e.g. xxx v Registered Trustees of the Anglican Church. In suing them you don’t have to list out the names ofthe registered trustees.

 

1. Unincorporated association: NBA v Fawehinmi (1986) 2 NWLR (pt.21) p.224; Shittu v Ligali (supra)

You sue their executives or some members as representatives, their names have to be listed out and then in bracket you say i.e. (suing as representatives or executive members of the association)

 

1. Registered Business name: Okechukwu& Sons v Ndah (supra)

You put the name of the owner and then under you put “Trading under the name and style of…(the registered business name)”.

Example

Ayo Shonaiya

(Trading under the name and style of Green light music publishers)

 

1. Power of attorney: D.J. Pereira v Motor &Gen . Insurance Co. Ltd. (1971) 1 NMLR p.181

In this case the donor is the one giving the donee the power of attorney to carry out some things on his behalf.

The action is instituted on behalf on the donor, so it will read:

Ayo Shonaiya

(Suing through his lawful attorney/donee Mr valentine)…claimant

 

1. Persons under legal disability –

How can the following persons sue or be sued?

The law says because they have a legal disability they have to sue in a particular way and be sued in a particular way

There are 3 groups of people referred to as persons under legal disability: 

• Infants – order 13 rule 9 Lagos, order 10 r ule11 Abuja
• Lunatic /person of unsound mind – order 13 rule 9 Lagos, order 10 rule 12 Abuja

The Abuja rule expressly states their disability, while Lagos rules simply refers to them as persons under legal disability.

Note: condition precedent to acting as a guardian (Lagos) or next friend (plaintiff in Abuja, but they will defend as guardian). Order 13 rule 10 Lagos; order 10 rule 14 Abuja.

 

Infant

Note the Case of Shofolayan v Fowler  (2002) 14 NWLR – where a child is suing through his guardian it is that child that will sue.

So a draft will read:

In Abuja

 

Tade Johnson (an infant)

(Suing through his next friend Mrs Yinka Johnson) ……... Plaintiff

 

Or in Lagos it would be

 

Tade Johnson (an infant)

(suing through his guardian Mrs Yinka Johnson) ………. Claimant

 

Lunatic/ person of unsound mind

In Abuja: The person sues through committee of lunacy or next friend or guardian appointed for that purpose.

 

Tade Johnson

(Suing through his committee in lunacy/ his next friend Mr Edward)

 

Note that before a person can be guardian or next friend, they must prepare and sign a written authorisation stating that he has undertaken to institute an action or defend an action on behalf of the lunatic. This written authorisation will be filed in court.

 

Consequence of a non juristic person suing or being used in an action AgbonmagbeBank v GM GB Ollivant (supra) ;Njemanze v Shell Bp Port Harcourt (1966) 1 All NLR

 

Can an amendment be granted where action is commenced in the name of a wrong person? Yes, it will be regarded as a misnomer Okechukwu&sons v Ndah (supra); compare …

Note also order 13 rule 2&5 Lagos; order 10 rule 2 Abuja.

 

JOINDER OF PARTIES

It is possible to have joinder of parties

Can two or more persons sue as plaintiffs and be sued as defendants?

Order 13 Rule 1 & 4 Lagos; order 10 rule 1 & 3 Abuja.

The only way you can have parties coming together is when they have joint or common interest, and they are seeking the same relief, and same cause of action, then they can sustain a joint action. Likewise a defendant can jointly be sued. See Amachree&ors v Newington (1952) 14 WACA p.97

Defendants can be sued either jointly or severally.

Object of the rule of joinder of parties - This is to avoid multiplicity of action and the courts are clogged up with different actions.

 

Some factors must be considered before joint parties can be maintained:

1. Consider whether any of the defendants has a good ground of counterclaim against any of the plaintiffs which may embarrass and delay the others
2. Whether the parties are likely to put up conflicting evidence between themselves

• Relative poverty of any of the parties vis-à-vis the others in case of joint liability for cost

 

What happens where a plaintiff/claimant is in doubt as who to seek relief from or sue as defendant? The law allows a claimant to sue the two of them as tort feasors, it wouldn’t be jointly but severally and this was the case in Bullock – here two bus drivers hit anther mans car, he didn’t know who actually hit him, he was allowed to take both of them to court for the court to decide who hit him.See order 13 rule 8 Lagos; Bullock v London General Omnibus Co. (1907) 1 KB 264; Ekun and Ors v Younan and Sons and anor (1959) WRLR 190 .

 

NON- JOINDER OF PARTIES

What is non-joinder of parties?

This is failure to join a necessary party to the case and as such the court cannot completely and effectually decide a case.

Effect of non-joinder. See order 13 rule 16(1) Lagos; the action will not be defeated so long there are parties before the court by whom the court can decide the matter, the problem is that the court cannot effectually decide the matter.

 

How to rectify non-joinder of parties. Order 13 rule 16(3) Lag; order 10 rule 5 (1) Abuja.

 

Procedure for adding parties in cases of non-joinder. See order 13 rule 17 (1) & (2) Lag; order 10 rule 17 Abuja

Order 39 rules 3 of Lagos says where any rule says you must come by motion then it has to be by motion of notice unless expressly stated otherwise.

A motion on notice is filed supported by an affidavit and a written address asking for a leave to join xyz as a defendant or claimant in the matter.

Abuja rules says that the court can adjourn and such person can be served with a notice, its still the same thing.

 

Steps to take when parties are added. Order 13 Rule 18 Lagos; order 10 rule 16 Abuja

Where a party has been properly joined, all the court processes must be corrected to reflect the joinder of the new party and served on the party that has been joined.

 

Mis-joinder of parties

This is the opposite of non-joinder. This is a case where you’ve mistakenly or wrongly joined party that you ought not to join.

Effect of misjoinder – it will not nullify or defeat an action order 13 rule 16 (1) Lagos

It can be rectified by bringing an application before the court by motion on notice supported by affidavit and written address asking the name of the person / party who has been wrongly joined be struck out.

 

Parties by intervention

This is when an outside party want to join in an action.

When intervention will be necessary. Order 13 rule 16(3) Lagos; Oriare v Government of western Nigerian &ors (1971) 1All Nlr P.138

 The essence of intervention is to protect the interest and legalright of theparty seeking to be joined

 

Procedure for intervention – by motion on notice supported by affidavit and written address. In Lagos order 13 rule 17 (1)&(2)which says he must attach his statement of claim, witness and …

 

Conditions for granting application: see OyedejiAkanbi (Mogaji) &anor v okunlolaIsholaFabunmi&anor (1986) 2 SC p.431

The conditions are stated in the above cases

• That the intervener ought to have been joined in the first instance as a party going by the facts of the case
• That the joinder of the intervener as a party is necessary to enable the court effectually and completely adjudicate over the matter
• That the judgment of the court will affect the intervener
• That the interests of the intervener is identical with those of the existing claimants/ defendants

 

Can a plaintiff be compelled to sue a party he does not want to sue/ proceed against a party he does not desire to sue?

Generally the law is you cannot compel a plaintiff to sue someone he doesn’t want to sue however in the case of the intervener the test the court will apply is whether the interest of the intervener will be affected by the judgment of the court. Once it is established that the interest of the intervener would be affected by the judgment then he will be joined.

Instances when intervention may arise:

1. Matrimonial causes
2. Probate actions – an intervener can intervene for public purpose, e.gwhere a beneficiary of a will is the one that killed the deceased it is morally wrong for him to benefit from that estate so the AG can intervene in an action saying no the beneficiary cannot benefit from that action.

• Representative actions

1. Land matters
2. Intervention for purposes of appeal. Laibru Ltd. V Building & Civil EngrContractors (1962) 1 All NLR p.387 – where a matter has gone an appeal, an intervener can still be added, however here a leave of court has to be sought before the party can be added.

 

REPRESENTATIVE ACTION

What is a representative action? Order 13 rule 12 Lagos; order 10 rule 8 Abuja. In a representative action, interest of numerous persons are affected in the cause of action, and are entitled to the relief but they are too many and so it is not possible to get all of them to court. In such situation the law allows one or more of them to institute or defend the action for and on behalf of the others. This happens in family/communal land. It is not restricted to only plaintiff or claimant.  It is Applicable to both plaintiff/ claimants and defendants

 

Factors to be considered:

Joint interest, same interest, same cause of action and same relief. See AlfredNwanguma&Orsv  Ikyaande&Ors (1992) 8 NWLR (pt.258) p.192

 

Procedure for bringing Representative Action

Order 13 rule 12 Lagos; order 10 rule 8 Abuja

• Obtain leave of court by motion ex parte, supported by affidavit and written address
• Seek or obtain authority of persons to be represented. This must be in form of a written authority.
• The representative capacity to be reflected on all court processes. see Vulcan Gases Ltd v OlaniyiOkunlola (1993) 2 NWLR (pt.274) p.139 @ 148

Note the 3 steps above

 

Although Lagos expressly states that you must obtain leave of court, Abuja does not state so expressly. In practice however, you will obtain leave for both places.

 

Effect of action. – The effect is that the judgment will bind everyone both those representing and the people being represented. - TessiOpebiyi v ShittuOshoboja (1976) 9-10 SC p.195 @ 200

 

Be careful in exam, a scenario can be given concerning family property in lekki.

If they are the claimants the draft will be

 

• Jimohsanni
• Sulesanni

(Suing for themselves and behalf of the Olosha family lekki)……..  Claimant

 

And where they are to be the defendants the draft will read:

 

Desmond Alakija…………………                      claimant

And

• Jimohsanni
• Sulesanni

(Sued for themselves and on behalf of the Olosha family lekki) ……… Defendant

 

CLASS ACTION

What is class action and when can it be brought?

Class action affects a large group of person that are geographically scattered all over. It is different from a representative action, in a representative action all the members are known; in a class action they are not easily ascertainable. Class action are for people who are not ascertainable, or where they are ascertainable they cannot be easily found and if ascertainable and found it is only expedient and for the purpose of proficient procedure that one or more person be appointed to represent them in a class action.

It is a form of representative action.

Procedure - Obtain leave of court by motion ex parte, supported by affidavit and written address.

 

What is the scope?

The scope is limited in both Lagos and Abuja, although covers a wide range of subject matters in Lagos. The scope in Lagos is wider than Abuja.  See Or.13 rule 13(1) Lagos; order 10 rule 9 Abuja.

In Lagos it applies to 4 things:

1. The administration of an estate or 

2. Property subject to a trust or 


• Land held under customary law as family or community property or 


1. The construction of any written instrument, including a statute

While in Abuja it applies only for a declaration or an injunction.It is only been used in recent times in Nigeria, it is limited.

 

Effect of class action.

Order 13 rule 1 (d)(iii) Lagos. – It will affect everyone, those represented, those representing and even those that cannot be ascertained or found.

 

Similarities and differences between representative Action & Class Actions.

- will be dealt with during interactive session

 

Alteration of parties

Situations that can lead to change of parties are contained in Order 13 rule 29 Lagos; order 10 rule 35 Abuja.

Whatever the change, you need to change the status of the party before the court.

 

Death of party

An action may die with a party or survive the deceased.

Where the cause of action does not survive:

• A personal action dies with the person (actiopersonalismoritur cum persona)
• Actions that are personal in nature die with the party e.g. action to enforce contract of personal service, assault, battery, false imprisonment, breach of promise to marry, libel, slander etc.

 

Some actions however survive a deceased person, these are actions that are not personal in nature e.g. recovery of sums owed, recovery of property, title to land. Any debt owed will revert to the estate.

 

Any action that survives the deceased proceeds, so an action proceeds’: order 13 rule 29& 30 Lagos; order 10 rule 36 Abuja; Mbadinuju v Ezuka (1994) 8 NWLR (pt.364) 535. See also order 13 rule 17 (2)

Application will be made for substitution of deceased party with his personal representative.

 Motion ex parte supported by affidavit and written address Order 13 rule 301 (1) Lagos

 Abuja does not expressly state the mode it only says that where a man has died and the action survives him, an action may be brought to court, but in practice it is done by motion ex parte supported by affidavit and written address.

 

THIRD PARTY PROCEEDINGS

What is third party proceedings and when can it be adopted?

This is a special procedure whereby a defendant to an action or a plaintiff who is a defendant to a counterclaim can apply to join a third party as his defendant to bear eventual liability either in whole or in part, contribution, indemnity. See order 10 Rule 18 Abuja; Order 13 Rule 19 Lagos.

The object is to prevent multiplicity of action.

 

What is the procedure?

Motion ex-parte for leave to issue and serve third party notice on the third party. Supported by affidavit stating the grounds for the applicant’s belief that the 3^rd party may bear eventual liability and written address. Order 13rule 19(1) Lagos; order 10 rule 18(2) Abuja

 

In a draft it will read (Lagos):

An order seeking leaveto serve a third party notice on the third party (Mr Sule)

 

Note that bringing in someone as a third party is different from bringing someone in as a defendant. Joinder of parties is different from bringing in a third party. Joinder of party is motion on notice supported by affidavit while third party is motion ex parte supported by affidavit.

 

In the car accident scenario –Sule hit Mrs odukoya car, he is the defendant and wants to add his insurance company as a third party to indemnify the cost of repairing Mrs odukoya’s car. He will then apply for leave of court to join Sun insurance as third party. The draft will then read as

 

Yinkafasakinodukoya             Claimant/ respondent  

 

And

 

SuleSanni ………..                             Defendant/applicant

 

And

 

Sun insurance company…..                Third party/respondent

 

Abuja also provides leave to issue and serve third party proceedings can be granted on a court discretion, at the hearing of a summons for issue to plaintiff.

 

How are the parties designated?

 What happens after application is granted?Where the court grants the application of the defendant and orders that the 3^rd party be joined the next thing is the defendant will serve the third party notice, the order of the court and all existing processes on the third party within the time limited for delivering defence order 13 rule 19(2) Lagos – 42 days ; order 10 rule 19(2) Abuja – 14 days.

 

Where those processes have been served on the third party the third party must an enter an appearance in the matter within 8 days from the date of service if he is within the jurisdiction of the court or within 30 days if he is outside the jurisdiction of the court order 13 rule 20 Lagos; order 10 rule 21 Abuja

Where he fails to enter an appearance or file a defence he shall be deemed to admit the defendants claim and shall be bound by any judgment given in the action. Order 13 rule 21 Lagos; order 10 rule 22 Abuja

 

Where a party has been joined as a 3^rd party he may under the rules decide to join another party as a 3^rd party so that party can bear eventual liability to him as third party. And so on. Order 13 rule 22 Lagos; order 10 rule 20 Abuja

See generallyOkafor v ACB ltd &anor (1975) 5 SC p.89; UBN (nig) ltd v Bisi

 

Ethical issues

What ethical issue may arise from

• Suing a party wrongly either through incompetence or deliberately to annoy, embarrass scandalise or oppress the party
• Failure to properly constitute the parties

 

Partnership – you can sue all the partners or any one or more as representing the partnership and the judgement would be binding.

Note that the use of registered trustees or incorporated trustees depends on the scenario cited in the question.

(suing through his lawful attorney Supreme Unukegwo) note that you have to include the power of attorney’s name