Representative actions are actions instituted and/or conducted by one or more plaintiffs or defendants for and on behalf of other parties (plaintiffs or defendants) to the suit Atanda v. Olanrewaju (1988) 4 NWLR (pt. 89) 394. This kind of actions are mainly used in actions by family heads or principal members for and on behalf of the family; officers or members of an association or common groups not bearing legal personality on behalf of the association or common group; next friends and guardian or ad litem for and on behalf of infants and lunatics; actions in respect of estate of deceased persons and executors of wills and letters of administration; other groups of persons with common interest in the subject matter of the action who decide to use a few persons to represent the entire persons constituted in that group.
The fundamental principle or conditions governing suits brought in a representative capacity are:
That those represented must have a common interest and a common grievance;
That the relief sought must, in its nature, be beneficial to all those being represented; and
The parties to be represented must give express permission or authority (that is, consent) to those who are to represent them – Amajideogu v. Ononaku (1988) 2 NWLR (Pt. 78) 614; Ayinde v. Akanji (1988) 1 NWLR (Pt. 68) 70 at 72; Atanda v. Olanrewaju (supra).
However, where plaintiffs on record in a representative action allege that they represent a group, any member of that group can object to the named plaintiffs representing him. In such a case, the dissenting member can apply and say that the named plaintiffs have no right to represent him or that he does not want them to represent him. Such a dissenting member is then usually made a defendant – Atanda v. Olanrewaju (supra); Fadayomi v. Sodipe (1986) 2 NWLR (Pt. 25) 736.
It is essential that the persons who are to be represented and the person(s) representing them should have the same interest in the cause or matter – S. Oragbade v. Onitiju (supra).
PROCEDURE FOR COMMENCING REPRESENTATIVE ACTIONS
Whenever a person or persons are suing or being sued in a representative capacity, it must be clearly shown on the title of the writ as well as in the endorsement on the writ the names of the parties and the capacities in which the action is being brought or prosecuted.
The title portion of the writ where the names of the parties are shown will typically read thus:
A (suing as a representative of the ABC family …………. Plaintiff
And
B ………………………………………………………….. Defendant
Where this is not done, counsel must seek the leave of court to amend the writ or the endorsement thereon – Emerotu Ede v. Osirire Ulagbo (1961) WRNLR 9
Representative action can only be instituted or commenced by seeking the leave of court by way of motion ex parte accompanied with an affidavit deposed to by the person or persons authorizing the plaintiff or defendant to prosecute or defend the action respectively – Sanni Akande v. Sanusi Araroye (1968) NMLR 283; Ogushi Omea v. Nweke Egbuchi (1970 – 71) 1 ECSLR 80.
In practice, affidavits supporting applications to sue in representative capacity are usually sworn to by the person intended to be made a representative attaching a copy or copies of the document signed by those being represented (and this document could be in form of affidavit also).
In a representative suit, both those represented and those representing them are bound by any judgment or order that may be made by the court during and after and/or at the end of the proceedings – Tesi Opebiyi v. Shittu Oshoboja (1976) 9 – 10 SC 195.
JOINT PLAINTIFFS
All persons who have a joint interest in the subject matter of a suit who may be jointly interested in a claim or relief to be obtained from the court may be joined as co-plaintiffs in that suit. This general rule may be waived if the interest of the parties is conflicting or if the joint trial of their claims may embarrass or delay the trial of the action. Under such situation, the court has the power to order that the plaintiffs institute separate actions.
The rationale for this rule of joinder of parties is to avoid multiplicity of actions. If the facts, the witnesses and the applicable laws are the same, it saves the time of the court as well as that of the litigants to try the cases as one, hence the trite law that there must be an end to litigation.
JOINT DEFENDANTS
All persons against whom the plaintiffs have relief or claims and the relief or claim originated from a common cause of action, interest or transaction may be joined in a single suit as co-defendants . Provided that a person against whom neither claim nor relief is sought and against whom the plaintiff has no cause of action cannot be joined as a co-defendant and/or made a party to the action – Fawehinmi v. NBA (supra).
The court has discretion whether or not to merge several distinct actions into one (consolidation of actions) which must be exercised judiciously and judicially.
CLASS ACTIONS
These are situations where:
Persons affected are either known or unknown but not found;
Expedient for few persons to sue on behalf of others e.g. an action against Nigerian Law School for inefficiency on behalf of other students;
In Lagos, class action is limited to Administration of estates; Property subject to trust; Family land under customary law; Construction of instrument or statute .
JOINDER OF PARTIES
All necessary parties must be joined as either co-plaintiff or co-defendant. Where a necessary party is not joined as a party to the suit, the court may in its discretion suo motu or upon application of a party join any person who has sufficient interest in the suit – Awoniyi v. Registered Trustees of the Rosicrucian Order, AMORC (Nigeria) (2000) 6 SC (Pt. 1) 103.
A person who is joined is entitled to be notified of his joinder. The purpose of joinder of necessary parties is to avoid multiplicity of actions, ensure that the parties are bound by the order of court and avoid abuse of court process – Ogolo v. Fubura (2003) 1 NWLR (Pt. 831) 234.
The joinder of parties takes effect from the date the court so orders and cannot take a retroactive effect from the date the writ of summons was filed before the court – Oduola v. Ogunjobi (1986) 2 NWLR (Pt. 23) 508 at 509. There is a need to amend the writ where there has been a joinder of a party – Newbreed Press Ltd v. Jaiyesin (2000) 6 NWLR (Pt. 662) 561.
Where a plaintiff is in doubt as to who, between two or more persons is liable, he can sue all – Ekum v. Younarr & Sons (1959) WRLR 190. But if the causes of action are different but merely similar (e.g. arrest and detention of persons at different times and places), there should not be a joint action – Amachree & Ors v. Newington (1952) 14 WACA 97.
NON-JOINDER OF PARTIES
This is the omission to join parties (either as plaintiff or defendant) whose participation in the suit is necessary for the proper and effective determination of the suit
A party complaining of not being joined or of not being made a party to the suit must satisfy the court that:
He is entitled to some share or interest in the subject matter of the suit;
He is likely to be affected by the outcome of the suit; and
If he is not made a party, the case cannot be decided with finality
The court in deciding whether there should be joinder where non-joinder exist would have to resolve the following issues:
Is the cause or matter liable to be defeated by the non-joinder.
Is it possible for the court to adjudicate on the cause of action set-off, without the third party being joined either as plaintiff or defendant.
Is the party or person someone who ought to have been joined ab initio.
Is he a person whose presence before the court as defendant or plaintiff will be necessary in order to enable the court to effectively or completely adjudicate or settle all the questions involved in the case with finality.
MISJOINDER OF PARTIES
This occurs when a plaintiff or defendant is wrongfully joined in an action or suit in the sense that he has no interest in the subject matter or in the relief being sought or that he lacks capacity to sue or defend the action
In proving cases of misjoinder, the proper step or procedure is for the party so wrongly joined to apply to the court for an order striking out his name from the entire suit or action. This must be by way of motion on notice, accompanied by an affidavit deposed to by the applicant himself. The court, in making a striking out order, may award some costs in favour of the applicant and payable to him by the party that wrongly brought him to court.
It should be noted that there is what is referred to as misnomer which means bringing the right person to court under a wrong name. While bullock order arises in misjoinder which is an order for cost against a plaintiff who institutes an action against two defendants but does not know which is liable for the wrong.
ALTERATION OF PARTIES
Alteration of parties usually arises where after the commencement of the case, there is a change of interest and it affects any of the parties such as where one of them dies or is incapable of carrying on with the action. In such a situation, a person interested may apply to the court to change such a party to the case But the death of a plaintiff or defendant shall not cause a suit to abate if the cause of action survives Also, where there are two or more plaintiffs or defendants and one of them dies, the suit shall proceed at the instance of the surviving plaintiff(s) against the surviving defendant provided that the cause of action survives .
SURVIVAL OF PARTIES
These cases are usually cases where the cause of action does not survive the party or the action necessarily abates by reason of death of one of the parties.
Under Common Law, the rule is that the death of either party extinguished liability in tort because personal actions perish with the person (action personalis moritur cum persona). Thus, in a suit for false imprisonment or trespass to land, if either party were to die, the action will not survive. There are however, some exceptions to this rule which are:
Actions arising out of contract will survive the death of either party thereto;
Where the deceased litigant has converted or carried away property belonging to the plaintiff and such property or proceeds thereof has become added to the estate of the deceased, the plaintiff can recover such property or the proceeds from the personal estate of the deceased.
Presently, the rule is that actions vested in or against the deceased person survive to the advantage or benefit or against his estate except actions of a strictly personal nature such as:
Actions for breach of promise to marry;
Actions for seduction;
Actions for enticement and harbouring; and
Actions for defamation – Inuan Eke Effiong v. NTA (1961) 1 All NLR 576.
Where actions are said to survive the death of parties, the court may, upon the application of the legal representatives in place of the deceased parties and the suit shall thereupon proceed. But where no such application is made to the court within what the court may consider a reasonable time by any person claiming to be the legal representatives of the deceased, the court shall make an order that the suit shall not survive (abate)
THIRD PARTY NOTICE OR PROCEEDINGS
This is a special procedure created by the rules of Court in favour of a defendant only. it is provided that where in an action a defendant claims as against any person not already a party (otherwise called a third party), that he is entitled to a contribution or indemnity, or any relief or remedy related or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, then the court or judge in chambers may give leave to the defendant to issue and serve a third party notice on the proposed third party.
These provisions are also contained in High Court Rules which provides that “where it appears to a Judge that any person not a party in the proceedings may bear eventual liability either in whole or in part, the Judge may upon an ex-parte application allow that person to be joined as a Third party by any of the defendants. The application shall state the grounds for the applicant’s belief that such Third party may bear eventual liability”.
PROCEDURE FOR BRINGING THE THIRD PARTY TO COURT
The High Court Rules provides for two procedures for the issue and service of a third party notice viz.:
By an ex-parte application supported by an affidavit. This is the first step to be taken by a defendant who wants to join a person as third party, he is to apply to the Court or Judge in chambers for leave to issue and serve on that person, a notice known as Third Party Notice. When this is granted, a third party notice is issued and served on the person with a copy of the writ of summons or originating summons and of any pleadings filed in the action; or
By issuing a summons to the plaintiff where the court or judge in chambers so directs. During the hearing of the summons, leave may be granted to issue a Third party notice. In this step, the person automatically becomes or is joined as a third party in the action. As such a party, he is in the position of a defendant in relation to the defendant in the action who brings him in that action – Johnson v. Ribbins (1977) WLR 1458 at 1462. He is not joined as a co-defendant as he is not against the plaintiff, he has the same rights as against the defendant as if he had been sued by the defendant in separate proceedings. That is, the defendant stands as a plaintiff to the third party, who in turn stands as a defendant – Bank of Ireland v. Union Bank (1998) 7 SCNJ 385 at 396 – Order 10 Rule 18(2) Abuja High Court Rules; Order 11 Rule 17(2) UPR.
ETHICAL ISSUES INVOLVED IN SUING A PARTY
A legal practitioner should not sue those who cannot sue and be sued. In Agbonmagbe Bank Ltd. v. General Manager, GB Olivant Ltd (1961) ANLR 125 where the court held that the first defendant was not a legal person and hence could not be sued.
A legal practitioner should not join unnecessary parties to a suit. In Nigerian Deposit Insurance Corporation v. Enyibros Foods & Anor. (2001) 18 NWLR 143, it was held that a necessary party is a person whose presence is essential for the effectual and complete determination of the issues before the court. He is a party in the absence of whom the claim cannot be effectively and completely determined.
Can an Interested Party Apply to be Joined as a Co-Respondent in an Appeal?
PRACTICE AREA: APPEAL- APPEAL BY INTERESTED PARTY
CASE TITLE: IBEJIRIKA AGWU & ORS v. MR. NSIRIMOVU AGWU & ORS (2022) LPELR-57463(CA)
JUDGMENT DATE: 27TH APRIL, 2022
JUSTICES:
JOSEPH SHAGBAOR IKYEGH, JCA
GABRIEL OMONIYI KOLAWOLE, JCA
OLABODE ABIMBOLA ADEGBEHINGBE, JCA
COURT DIVISION: PORT HARCOURT
FACTS:
The Applicants and 2nd & 3rd Respondents are all children of Late Chief Emenike Solomon Agwu who died intestate and whose estate was subsequently partitioned amongst all his children including all the Applicants and the 2nd & 3rd Respondents. The estate of said Late Chief Emenike Solomon Agwu is the subject of an appeal pending in the Court. The Applicants were not parties to the litigation leading to the said appeal.
By an application, the Applicants, as heirs to the Late Chief Emenike Solomon Agwu and having a subsisting and substantial interest in the estate, sought leave of the Court of Appeal to apply to be joined as Interested Parties/Co-Respondents in the appeal and subsequently, an order of the Court joining them as Interested Parties/Co-Respondents in order to defend/protect their interest in the subject matter of the appeal.They also sought an order directing all parties in the appeal to amend their processes filed to reflect the joinder and serve the same on the Applicants’ Counsel.
The Applicants contended that they will be affected by any decision of the Court in the pending appeal in respect of the estate of the Late Chief Emenike Solomon Agwu including the portion partitioned to them. Thus, the application was brought pursuant to their right of appeal provided by Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
ISSUES:
The Applicants distilled issues for determination of the application thus:
Whether Applicants have adduced evidence to prove/show their interest in the subject matter of this appeal, to be entitled to the reliefs sought in this application?
Whether Applicants will be affected by the decision of this Court?
COUNSEL SUBMISSIONS
The fundamental principle or conditions governing suits brought in a representative capacity are:
That those represented must have a common interest and a common grievance;
That the relief sought must, in its nature, be beneficial to all those being represented; and
The parties to be represented must give express permission or authority (that is, consent) to those who are to represent them – Amajideogu v. Ononaku (1988) 2 NWLR (Pt. 78) 614; Ayinde v. Akanji (1988) 1 NWLR (Pt. 68) 70 at 72; Atanda v. Olanrewaju (supra).
However, where plaintiffs on record in a representative action allege that they represent a group, any member of that group can object to the named plaintiffs representing him. In such a case, the dissenting member can apply and say that the named plaintiffs have no right to represent him or that he does not want them to represent him. Such a dissenting member is then usually made a defendant – Atanda v. Olanrewaju (supra); Fadayomi v. Sodipe (1986) 2 NWLR (Pt. 25) 736.
It is essential that the persons who are to be represented and the person(s) representing them should have the same interest in the cause or matter – S. Oragbade v. Onitiju (supra).
PROCEDURE FOR COMMENCING REPRESENTATIVE ACTIONS
Whenever a person or persons are suing or being sued in a representative capacity, it must be clearly shown on the title of the writ as well as in the endorsement on the writ the names of the parties and the capacities in which the action is being brought or prosecuted.
The title portion of the writ where the names of the parties are shown will typically read thus:
A (suing as a representative of the ABC family …………. Plaintiff
And
B ………………………………………………………….. Defendant
Where this is not done, counsel must seek the leave of court to amend the writ or the endorsement thereon – Emerotu Ede v. Osirire Ulagbo (1961) WRNLR 9
Representative action can only be instituted or commenced by seeking the leave of court by way of motion ex parte accompanied with an affidavit deposed to by the person or persons authorizing the plaintiff or defendant to prosecute or defend the action respectively – Sanni Akande v. Sanusi Araroye (1968) NMLR 283; Ogushi Omea v. Nweke Egbuchi (1970 – 71) 1 ECSLR 80.
In practice, affidavits supporting applications to sue in representative capacity are usually sworn to by the person intended to be made a representative attaching a copy or copies of the document signed by those being represented (and this document could be in form of affidavit also).
In a representative suit, both those represented and those representing them are bound by any judgment or order that may be made by the court during and after and/or at the end of the proceedings – Tesi Opebiyi v. Shittu Oshoboja (1976) 9 – 10 SC 195.
JOINT PLAINTIFFS
All persons who have a joint interest in the subject matter of a suit who may be jointly interested in a claim or relief to be obtained from the court may be joined as co-plaintiffs in that suit. This general rule may be waived if the interest of the parties is conflicting or if the joint trial of their claims may embarrass or delay the trial of the action. Under such situation, the court has the power to order that the plaintiffs institute separate actions.
The rationale for this rule of joinder of parties is to avoid multiplicity of actions. If the facts, the witnesses and the applicable laws are the same, it saves the time of the court as well as that of the litigants to try the cases as one, hence the trite law that there must be an end to litigation.
JOINT DEFENDANTS
All persons against whom the plaintiffs have relief or claims and the relief or claim originated from a common cause of action, interest or transaction may be joined in a single suit as co-defendants . Provided that a person against whom neither claim nor relief is sought and against whom the plaintiff has no cause of action cannot be joined as a co-defendant and/or made a party to the action – Fawehinmi v. NBA (supra).
The court has discretion whether or not to merge several distinct actions into one (consolidation of actions) which must be exercised judiciously and judicially.
CLASS ACTIONS
These are situations where:
Persons affected are either known or unknown but not found;
Expedient for few persons to sue on behalf of others e.g. an action against Nigerian Law School for inefficiency on behalf of other students;
In Lagos, class action is limited to Administration of estates; Property subject to trust; Family land under customary law; Construction of instrument or statute .
JOINDER OF PARTIES
All necessary parties must be joined as either co-plaintiff or co-defendant. Where a necessary party is not joined as a party to the suit, the court may in its discretion suo motu or upon application of a party join any person who has sufficient interest in the suit – Awoniyi v. Registered Trustees of the Rosicrucian Order, AMORC (Nigeria) (2000) 6 SC (Pt. 1) 103.
A person who is joined is entitled to be notified of his joinder. The purpose of joinder of necessary parties is to avoid multiplicity of actions, ensure that the parties are bound by the order of court and avoid abuse of court process – Ogolo v. Fubura (2003) 1 NWLR (Pt. 831) 234.
The joinder of parties takes effect from the date the court so orders and cannot take a retroactive effect from the date the writ of summons was filed before the court – Oduola v. Ogunjobi (1986) 2 NWLR (Pt. 23) 508 at 509. There is a need to amend the writ where there has been a joinder of a party – Newbreed Press Ltd v. Jaiyesin (2000) 6 NWLR (Pt. 662) 561.
Where a plaintiff is in doubt as to who, between two or more persons is liable, he can sue all – Ekum v. Younarr & Sons (1959) WRLR 190. But if the causes of action are different but merely similar (e.g. arrest and detention of persons at different times and places), there should not be a joint action – Amachree & Ors v. Newington (1952) 14 WACA 97.
NON-JOINDER OF PARTIES
This is the omission to join parties (either as plaintiff or defendant) whose participation in the suit is necessary for the proper and effective determination of the suit
A party complaining of not being joined or of not being made a party to the suit must satisfy the court that:
He is entitled to some share or interest in the subject matter of the suit;
He is likely to be affected by the outcome of the suit; and
If he is not made a party, the case cannot be decided with finality
The court in deciding whether there should be joinder where non-joinder exist would have to resolve the following issues:
Is the cause or matter liable to be defeated by the non-joinder.
Is it possible for the court to adjudicate on the cause of action set-off, without the third party being joined either as plaintiff or defendant.
Is the party or person someone who ought to have been joined ab initio.
Is he a person whose presence before the court as defendant or plaintiff will be necessary in order to enable the court to effectively or completely adjudicate or settle all the questions involved in the case with finality.
MISJOINDER OF PARTIES
This occurs when a plaintiff or defendant is wrongfully joined in an action or suit in the sense that he has no interest in the subject matter or in the relief being sought or that he lacks capacity to sue or defend the action
In proving cases of misjoinder, the proper step or procedure is for the party so wrongly joined to apply to the court for an order striking out his name from the entire suit or action. This must be by way of motion on notice, accompanied by an affidavit deposed to by the applicant himself. The court, in making a striking out order, may award some costs in favour of the applicant and payable to him by the party that wrongly brought him to court.
It should be noted that there is what is referred to as misnomer which means bringing the right person to court under a wrong name. While bullock order arises in misjoinder which is an order for cost against a plaintiff who institutes an action against two defendants but does not know which is liable for the wrong.
ALTERATION OF PARTIES
Alteration of parties usually arises where after the commencement of the case, there is a change of interest and it affects any of the parties such as where one of them dies or is incapable of carrying on with the action. In such a situation, a person interested may apply to the court to change such a party to the case But the death of a plaintiff or defendant shall not cause a suit to abate if the cause of action survives Also, where there are two or more plaintiffs or defendants and one of them dies, the suit shall proceed at the instance of the surviving plaintiff(s) against the surviving defendant provided that the cause of action survives .
SURVIVAL OF PARTIES
These cases are usually cases where the cause of action does not survive the party or the action necessarily abates by reason of death of one of the parties.
Under Common Law, the rule is that the death of either party extinguished liability in tort because personal actions perish with the person (action personalis moritur cum persona). Thus, in a suit for false imprisonment or trespass to land, if either party were to die, the action will not survive. There are however, some exceptions to this rule which are:
Actions arising out of contract will survive the death of either party thereto;
Where the deceased litigant has converted or carried away property belonging to the plaintiff and such property or proceeds thereof has become added to the estate of the deceased, the plaintiff can recover such property or the proceeds from the personal estate of the deceased.
Presently, the rule is that actions vested in or against the deceased person survive to the advantage or benefit or against his estate except actions of a strictly personal nature such as:
Actions for breach of promise to marry;
Actions for seduction;
Actions for enticement and harbouring; and
Actions for defamation – Inuan Eke Effiong v. NTA (1961) 1 All NLR 576.
Where actions are said to survive the death of parties, the court may, upon the application of the legal representatives in place of the deceased parties and the suit shall thereupon proceed. But where no such application is made to the court within what the court may consider a reasonable time by any person claiming to be the legal representatives of the deceased, the court shall make an order that the suit shall not survive (abate)
THIRD PARTY NOTICE OR PROCEEDINGS
This is a special procedure created by the rules of Court in favour of a defendant only. it is provided that where in an action a defendant claims as against any person not already a party (otherwise called a third party), that he is entitled to a contribution or indemnity, or any relief or remedy related or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, then the court or judge in chambers may give leave to the defendant to issue and serve a third party notice on the proposed third party.
These provisions are also contained in High Court Rules which provides that “where it appears to a Judge that any person not a party in the proceedings may bear eventual liability either in whole or in part, the Judge may upon an ex-parte application allow that person to be joined as a Third party by any of the defendants. The application shall state the grounds for the applicant’s belief that such Third party may bear eventual liability”.
PROCEDURE FOR BRINGING THE THIRD PARTY TO COURT
The High Court Rules provides for two procedures for the issue and service of a third party notice viz.:
By an ex-parte application supported by an affidavit. This is the first step to be taken by a defendant who wants to join a person as third party, he is to apply to the Court or Judge in chambers for leave to issue and serve on that person, a notice known as Third Party Notice. When this is granted, a third party notice is issued and served on the person with a copy of the writ of summons or originating summons and of any pleadings filed in the action; or
By issuing a summons to the plaintiff where the court or judge in chambers so directs. During the hearing of the summons, leave may be granted to issue a Third party notice. In this step, the person automatically becomes or is joined as a third party in the action. As such a party, he is in the position of a defendant in relation to the defendant in the action who brings him in that action – Johnson v. Ribbins (1977) WLR 1458 at 1462. He is not joined as a co-defendant as he is not against the plaintiff, he has the same rights as against the defendant as if he had been sued by the defendant in separate proceedings. That is, the defendant stands as a plaintiff to the third party, who in turn stands as a defendant – Bank of Ireland v. Union Bank (1998) 7 SCNJ 385 at 396 – Order 10 Rule 18(2) Abuja High Court Rules; Order 11 Rule 17(2) UPR.
ETHICAL ISSUES INVOLVED IN SUING A PARTY
A legal practitioner should not sue those who cannot sue and be sued. In Agbonmagbe Bank Ltd. v. General Manager, GB Olivant Ltd (1961) ANLR 125 where the court held that the first defendant was not a legal person and hence could not be sued.
A legal practitioner should not join unnecessary parties to a suit. In Nigerian Deposit Insurance Corporation v. Enyibros Foods & Anor. (2001) 18 NWLR 143, it was held that a necessary party is a person whose presence is essential for the effectual and complete determination of the issues before the court. He is a party in the absence of whom the claim cannot be effectively and completely determined.
Can an Interested Party Apply to be Joined as a Co-Respondent in an Appeal?
PRACTICE AREA: APPEAL- APPEAL BY INTERESTED PARTY
CASE TITLE: IBEJIRIKA AGWU & ORS v. MR. NSIRIMOVU AGWU & ORS (2022) LPELR-57463(CA)
JUDGMENT DATE: 27TH APRIL, 2022
JUSTICES:
JOSEPH SHAGBAOR IKYEGH, JCA
GABRIEL OMONIYI KOLAWOLE, JCA
OLABODE ABIMBOLA ADEGBEHINGBE, JCA
COURT DIVISION: PORT HARCOURT
FACTS:
The Applicants and 2nd & 3rd Respondents are all children of Late Chief Emenike Solomon Agwu who died intestate and whose estate was subsequently partitioned amongst all his children including all the Applicants and the 2nd & 3rd Respondents. The estate of said Late Chief Emenike Solomon Agwu is the subject of an appeal pending in the Court. The Applicants were not parties to the litigation leading to the said appeal.
By an application, the Applicants, as heirs to the Late Chief Emenike Solomon Agwu and having a subsisting and substantial interest in the estate, sought leave of the Court of Appeal to apply to be joined as Interested Parties/Co-Respondents in the appeal and subsequently, an order of the Court joining them as Interested Parties/Co-Respondents in order to defend/protect their interest in the subject matter of the appeal.They also sought an order directing all parties in the appeal to amend their processes filed to reflect the joinder and serve the same on the Applicants’ Counsel.
The Applicants contended that they will be affected by any decision of the Court in the pending appeal in respect of the estate of the Late Chief Emenike Solomon Agwu including the portion partitioned to them. Thus, the application was brought pursuant to their right of appeal provided by Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
ISSUES:
The Applicants distilled issues for determination of the application thus:
Whether Applicants have adduced evidence to prove/show their interest in the subject matter of this appeal, to be entitled to the reliefs sought in this application?
Whether Applicants will be affected by the decision of this Court?
COUNSEL SUBMISSIONS
Learned Counsel to the Applicants submitted that the Applicants have showed sufficient interest in the appeal for their application to meet with success. That the Applicants are privies of the late Solomon Emenike Agwu, being his children and beneficiaries of his estate and falling within the ambit of privies by blood and estate as defined in the locus classicus of COKER V. SANYAOLU.
On the other hand, learned Counsel to the Appellant argued that Section 243(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999, only provides for a right of appeal and the Applicants are not appealing against the judgment of the trial Court. That the Applicants have not shown that they are persons having interest in the appeal, as demanded by Section 243 of the Constitution.
ALSO READ: Duty of Court to Serve Hearing Notice on Parties Who Were Absent When a Case Was Adjourned- Heritage Bank v. Awolesi
DECISION/HELD
In a unanimous decision, the application was refused.
RATIOS:
APPEAL- APPEAL BY INTERESTED PARTY: Whether Section 243(1)(a) of the 1999 Constitution vests in a party applying to be joined as a co-respondent the right to appeal as an interested party –
“…the Applicants/parties seeking to be joined brought their application, to be joined as co-Respondents, under Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999. The provision is slightly different from what was provided in Section 222(a) of 1979 (which is the basis of the decisions relied upon by the Applicants). It seems that the provision of Section 243(1)(a) has attracted a different interpretation from what was available earlier than the 1999 Constitution. In the case of Charles Odedo v. PDP & Ors. [2015] LPELR-24738(SC), the Court (per Ogunbiyi, J. S. C.) stated regarding such an application, as follows: “The Applicant from the content of his application is seeking to be joined as Co-Respondents and not as co-Appellant. The provision of Section 243 creates a right that it vests in an intending Appellant and not in an intending Respondent. The reproduction of Section 243(1) states: – “any right of appeal from the party thereto, or decisions of the Federal High Court or a High Court conferred by this Constitution shall be: (a) Exercisable in the cause of any proceedings at the instance of a party thereto or…leaveof the Federal High Court or the Court of Appeal at the instance of any other person having an interest on the matter.” The right is to be exercised by a person who is aggrieved by the judgment and desires to appeal against it. The same benefit or right is not shown to extend also to any other person who was not affected by the judgment being appealed against to be joined for the purpose of defending the said judgment. The Court, as rightly submitted by the 5th Respondent’s counsel, is given the power to interpret the provisions of the Constitution as it is expressed in clear terms. That power does not extend to legislation but is purely adjudicative.
The right as sought by the Appellant/Applicant is novel and has no place as it neither comes under Section 243(1)(a) of the Constitution nor any other provision known to law. It is unfortunate to say that the application is lacking grossly in merit and is an abuse of the Court process; the totality is a bundle of confusion and is hereby dismissed. Consequently, the Appellant has no standing in the appeal herein. He cannot possibly be a necessary party or a desirable party for the determination of the appeal before the Court below. The Appellant is a mere interloper and should go home and keep his peace.” Nweze, J. S. C. in the above-cited case elucidated the point as follows: “From the averment in paragraph (e) of the Grounds of his application, it is evident that the judgment in FHC/ABJ/CS/854/2014 inures in his favour. That being the case, his application under Section 243(1) (a) of the Constitution is not well-taken. When the Draftsperson of the 1999 Constitution (as amended) speaks of “person having an interest” in the second clause of Section 243(1) (a) (supra), he uses the phrase synonymously with the phrase a “person aggrieved;” that is, a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has, wrongfully, deprived him or her of something or, wrongfully, refused him or her of something or wrongfully affected his or her title to something.” It appears to me that the applicants are not persons aggrieved by the judgment of the lower Court. Applicants only benefited from the enforcement of a judgment of the lower Court and thus, they are not aggrieved. There is no provision in the Constitution to accommodate the type of interest the Applicants seek to canvass or project in this appeal. The joinder of the Applicants will place them in the position of claimants in the lower Court, in circumstances in which the Applicants did not have a prayer before the lower Court fashioned to accommodate their peculiar interest. In the case of Eyigebe v. Iyaji [2013] LPELR – 20522(SC), the Court warned that: “The law is also trite and well settled that an appeal is a continuation of the case instituted at the trial Court. The final end result of an appeal cannot reflect or produce a relief different from that which originated at the trial inception.” Per OGUNBIYI, J.S.C (PP. 20-21 paras. F).” Per ADEGBEHINGBE, J.C.A.
The judgment in a rep action is binding on all, both the representatives and the represented, including those whose names do not appear individually on the writ, provided that they fall within the membership of the group represented Oketie v Olughor (1995).
Reasons Behind Rep Actions • Members of the group may be so numerous to reflect all their names on the process • The group may not have capacity to sue–unincorporated/unregistered associations; unregistered corporative societies, family, community, etc • It may be in compliance with provisions of statute/law; rep actions under S301 (2) CAMA; trustees/executors/admins
Conditions Precedent to Rep Actions 1. Prior written authority of the represented filed as exhibit with the processes 2. Leave of court. Although, it is no longer provided for in the new rules but in Abuja and Lagos but there is still leave of court in practice. Therefore, failure to obtain the leave does not vitiate the proceedings Mbanefo v Molokwu. Procedure for leave is by i. Motion Ex Parte ii. Affidavit iii. Written Address 3. Both the represented and the representatives must have a common interest or common grievance in the action 4. The relief sought must be beneficial to both the representatives and the represented Adediran v Interland Transport (1991) 5. The fact that the action is a rep action must be reflected on the face of the Writ 6. The names of the representatives and the capacity in which they are suing must be reflected on the writ 7. If action is not initially brought as a rep action, the processes could be amended with leave of court to so reflect Vulcan Gases v Okunlola (1993). This may be done at any stage of the proceedings before judgment. But where the amendment is not done or no authorization is given until judgment, action would be deemed to have been instituted in a personal capacity Ndulue v Onyekwulunne (2002).
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532
48
Objection to Rep Actions
Respondent/Defendant may challenge the capacity or authority in which a rep action is instituted. Procedure is by
i. Motion on Notice ii. Affidavit iii. Written Address
Alternative Procedure is by i. Notice of preliminary Objection ii. Written Address
Respondent/Defendant cannot challenge a rep action in the Statement of Defence or by and Affidavit Wali v Amaefule (2014).
REPRESENTATIVE ACTIONS/PROCEDURE
When a person or persons sue/defend in their individual names but on behalf of a group of persons having a common interest in the action, such an action is called a rep action 13/14 Abuja, 15/12 Lagos.The judgment in a rep action is binding on all, both the representatives and the represented, including those whose names do not appear individually on the writ, provided that they fall within the membership of the group represented Oketie v Olughor (1995).
Reasons Behind Rep Actions • Members of the group may be so numerous to reflect all their names on the process • The group may not have capacity to sue–unincorporated/unregistered associations; unregistered corporative societies, family, community, etc • It may be in compliance with provisions of statute/law; rep actions under S301 (2) CAMA; trustees/executors/admins
Conditions Precedent to Rep Actions 1. Prior written authority of the represented filed as exhibit with the processes 2. Leave of court. Although, it is no longer provided for in the new rules but in Abuja and Lagos but there is still leave of court in practice. Therefore, failure to obtain the leave does not vitiate the proceedings Mbanefo v Molokwu. Procedure for leave is by i. Motion Ex Parte ii. Affidavit iii. Written Address 3. Both the represented and the representatives must have a common interest or common grievance in the action 4. The relief sought must be beneficial to both the representatives and the represented Adediran v Interland Transport (1991) 5. The fact that the action is a rep action must be reflected on the face of the Writ 6. The names of the representatives and the capacity in which they are suing must be reflected on the writ 7. If action is not initially brought as a rep action, the processes could be amended with leave of court to so reflect Vulcan Gases v Okunlola (1993). This may be done at any stage of the proceedings before judgment. But where the amendment is not done or no authorization is given until judgment, action would be deemed to have been instituted in a personal capacity Ndulue v Onyekwulunne (2002).
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532
48
Objection to Rep Actions
Respondent/Defendant may challenge the capacity or authority in which a rep action is instituted. Procedure is by
i. Motion on Notice ii. Affidavit iii. Written Address
Alternative Procedure is by i. Notice of preliminary Objection ii. Written Address
Respondent/Defendant cannot challenge a rep action in the Statement of Defence or by and Affidavit Wali v Amaefule (2014).
¶ In a class action, one person brings a claim on behalf of a wider group of people who have been affected in a similar way, or by the same conduct.
¶ Class actions ordinarily involve a single plaintiff ( the ‘representative’). If the Court certifies the class action, this person becomes the class representative.
As the lead plaintiff, this representative addresses the Court in the name of the other members that he or she represents.
¶ Commonly, a lead plaintiff in exchange for their time and effort will receive a larger percentage of any potential settlement than the other plaintiffs.
¶ One of the merits of class actions is that by pursuing a claim collectively, the value of the claim increases while the cost to each member reduces.
Post a Comment