CIVIL LITIGATION: CASES AND PRINCIPLES ON PARTIES TO A SUIT

WHO IS A PARTY TO A PROCEEDING?

In GREEN V GREEN: A party to a proceeding is one whose name appears on the record as Plaintiff or defendant. This affirms the position in UDE V NWANGWU; that a party cannot be  both Plaintiff and Defendant in the same suit.

GREEN V GREEN (DEFINITION OF VARIOUS PARTIES)

Proper Parties: Are those who though not interested in the plaintiffs claim, are made parties for some good reasons

Desirable Parties: Those who have an interest or who may be affected by the result

Necessary Parties: Those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceeding could not be fairly dealt with.

The court in GREEN V GREEN, further laid down a principle that;

       ‘’a plaintiff who believes that he has a cause of action against a particular defendant is entitled to pursue his remedy against the defendant only and should not be compelled to proceed against other persons whom he has no desire and no intention to sue’’

In addition to parties in PADAWA V JATAU : NOMINAL PARTY: was defined to be a party who though, having some interest in the subject matter of a suit, will not be affected by any judgment of the court but is nevertheless joined in the suit to avoid procedural defects.

To the next question WHO CAN SUE AND BE SUED?

GENERAL RULE: Parties to a suit must be legal persons for the action to be competent.

SUB-RULE 1: Lack of competence of a Plaintiff leads to the entire action being struck out. In SHITTA & ORS V LIGALI & ORS: The Court held that the Plaintiff were nothing more than a collection of individuals with no capacity to sue.

SUB-RULE 2: Lack of competence of a defendant i.e person whom an action is instituted against will amount to striking out of the case if there is only one such party.  See AGBONMAGBE BANK LTD V GENERAL MANAGER, G.B. OLIVANT LTD: were the Plaintiff instituted an action against the 1^st defendant as ‘’GENERAL MANAGER, G.B. OLOIVANT LTD’’ the court held that 1^st defendant was not a legal entity, the 1^st defendant was struck out of the suit.

SUB-RULE 3: In a case of MISNOMER (were the party is a juristic entity but was merely misdescribed) this is provided for ORDER 13 RULE 5 HIGH COURT OF LAGOS CIVIL PROCEDURE AND OKECHUCKWU & SONS V NDAH

                        ‘’Where an action has been instituted against a wrong defendant or where the name of the defendant has been incorrectly stated a judge may upon application, order a substitution or addition of any person as defendant or correction of any such name on such terms as may be just’’

JOINDER OF PARTIES

This occurs when at the time of instituting an action, there was failure to join a party who ought to have being joined. In ONAYEMI V OKUNNIBI: The court held that any person craving for relief should bring before the court all such persons as are necessary to enable it to do complete justice

A necessary party was defined in GREEN V GREEN above, however DELVIN J in AMON V RAPHEAL TUCK: stated that ‘’the only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question and the question to be settled therefore must be a question in the action which can’t be effectually and completely settled unless he is a party’’

N.B FOR THE PURPOSE OF DRAFTING;

JOINDER OF PLAINTIFF/ CLAIMANT

Ø  IN LAGOS: Order 13 RULE 1 ( CLAIMANT)

Ø  IN ABUJA: Order 10 RULE 1 (PLAINTIFF)

JOINDER OF DEFENDANT

Ø  IN LAGOS: Order 13 RULE 4

Ø  IN ABUJA: Order 10 RULE 3

GROUNDS UPON WHICH JOINER CAN BE REFUSE

In AMACHERE & ORS V NEWINGTON AND ORDER 10 RULE 1(2) ABUJA

Ø  Where the joinder would embarrass any of the parties

Ø  Where the joinder would delay the proceedings

Ø  Where the rights to relief of the part seeking to be joined arise out of different transaction.

CONDITIONS TO CONSIDER FOR JOINDER

IN GREEN V GREEN

Ø  Is the cause or matter liable to be defeated if the person is joined?

Ø  Is it possible for the court to adjudicate on the cause of action, set off without the person being joined either as plaintiff or defendant?

Ø  Is the party or person a person who ought to have been joined ab initio?

Ø  Can the person partake sufficiently in the matters as a mere witness?

PROCEDURE FOR APPLICATION

IN LAGOS: Order 13 Rule 17(2)

Ø  Motion on Notice supported by affidavit and written address and

a)      Statement of claim

b)      Exhibits intended to be used at the trial

c)      Depositions of all the witness

IN ABUJA: Order 10 Rule 17

Application made to a court or judge in chamber by

Ø  Motion

Ø  Summons or

Ø  In a summary manner at the hearing of the action.

                                                       NON-JOINDER

In Abuja: Order 10 Rule 5 (1) & (2)

PROCEDURE 1: Order 10 Rule 17

PROCEDURE 2: where it appears to the court AT or BEFORE HEARING that all persons possibly interested in the suit have not being made parties, the court MAY ADJOURN, and DIRECT that those persons be made parties (ORDER 10 RULE 5 (1))

Furthermore, where the person to be joined has been served with a notice of the joinder, he shall be bound by the decision in the proceedings, whether or not he appears (ORDER 10 RULE 5(3))

IN LAGOS: Order 13 Rule 16 (1)

PROCEDURE 1: A judge MAY ORDER that the names of any party who ought to be joined or whose presence before the court is NECESSARY to EFFECTUALLY and COMPLETELY ADJUDICATE upon and SETTLE the questions involved in the proceedings be ADDED. See (ORDER 13 RULE 16(3))

PROCEDURE 2: Order 13 Rule 17.

IN ONAYEMI V OKUNIB: The court held that NON-JOINDER cant defeat a claim, it rests with the defendants to raise, as early as possible, the point that not all intended persons are before the court so that the court may direct the plaintiff to give them notice and have everybody concerned as a party at the trial.

                                                        MISJOINDER

This is simply joining as a party, a person who ordinarily ought not be joined.

IN LAGOS: Order 13 Rule 16(1)

 PROCEDURE 1:[Order 13 Rule 16 (2)] A judge MAY AT ANY STAGE OF THE PROCEEDINGS   either UPON or WITHOUT THE APPLICATION of either PARTY and on such terms as may appear to the Judge to be just, order that the NAMES OF ANY PARTIES improperly joined BE STRUCK OUT.

PROCEDURE 2: Order 13 Rule 17

IN ABUJA: Order 10 Rule 5 (5) and Order 10 Rule 17 (same as Lagos)

IN OKOYE & ORS V NIGERIA CONSTRUCTION AND FURNITURE CO LTD AND ORS

The court held that failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the court to adjudicate on the matter before it.

            However, the irregularity may lead to unfairness which may lead to unfairness which may result in setting aside the judgment on appeal.

REPRESENTATIVE ACTION

IN LAGOS: Order 13 Rule 12

IN ABUJA : Order 10 Rule 8

PROCEDURE: Lagos is silent, but generally a leave of court must be granted to institute an action in this manner, and generally an application by leave on this action is by MOTION EXPARTE, In Abuja ORDER 10 RULE 8 laid down procedure of MOTION EXPARTE and attached to it;

Ø  Affidavit disclosing the fact surrounding the representative common interest and grievances

Ø  Memorandum signed by a majority of interested parties authorizing the representation

Ø  Written address.

IN EKENNIA V NKPAKARA &ORS: the court held that when an action is instituted in a representative capacity and/or against persons in a representative capacity, that action is not only by or against the named parties, they are also by or against those that are also by or against those the named parties’ rep. who in the suit are not stated nomine

CLASS ACTION

IN LAGOS: Order 13 Rule 13, Scope;

Ø  Administration of an estate

Ø  Property subject to trust

Ø  Land held under customary law as family or community property

Ø  Construction of any written instrument including a statue

IN ABUJA: Order 10 Rule 9, Scope

Action for declaration and injunction

ALTERATION OF PARTIES

IN LAGOS: Order 13 Rule 29

IN ABUJA: Order 10 Rule 35

Death of The Party

IN OKETIE V OLUGHOR: Where the court stated that apart from the legal rights of administrators, executors or the personal representative of a deceased person, a dead person ceases to have any legal personality from the moment of death and as such can neither sue nor be sued.

            However, where the cause of action survives the death of a party, such action is not terminated by death. This principle also applies to an Appeal. See ORDER 10 RULE 36 ABUJA

THIRD PARTY PROCEEDING

IN LAGOS: Order 13 Rule 19

            ‘’where it appears to a judge that ANY PERSON NOT A PARTY IN THE PROCEEDING may BEAR EVENTUAL LIABILITY either in whole or in part, the Judge may upon an EXPARTE APPLICATION allow that person to be joined as a 3^rd Party by any of the DEFENDANTS’’.

IN ABUJA: Order 10 Rule 18 laid down condition for third part notice;

Ø  He is entitled to indemnity

Ø  His entitled to any relief connected with the original subject matter of the action and substantially the relief claimed by the plaintiff

Ø  An issue relating to the subject-matter is substantially the same arising between the plaintiff and the defendant and should be properly be determined between the plaintiff, the defendant and the 3^rd Party or any of them.

PROCEDURE: Order 10 Rule 18(2)

Ø  Motion exparte supported by affidavit

Ø  A court direction at the hearing of a summon for issue to plaintiff.

TIME FOR APPEARANCE: Order 10 Rule 21(1) ABUJA, Order 13 Rule 20 Lagos

Ø  8 days or

Ø  Within 30 days if his outside jurisdiction.

However, if he fails to appear within prescribe time, he may apply for extension of time to enter appearance. ORDER 44 RULE 4 LAG, ORDER 10 RULE 21(2) ABUJA

EFFECT OF FAILURE TO APPEAR: He shall be deemed to have admitted the claims on the 3^rd Part Notice and shall be bound by all decision in the proceedings. ORDER 10 RULE 22 ABUJA, ORDER 13 RULE 21 LAGOS

IN BANK OF IRELAND V U.B.N

The main object of a third party procedure is to prevent multiplicity of actions and prevents the same issues being decided upon in different proceedings.

       Therefore, where it is shown that there is an obligation on the part of the 3^rd party in law or in equity to indemnify the defendant, then an order will be.

       A 3^rd party proceeding has a life of its own, so that even where the main action has been settled, the 3^rd party proceedings already begin may proceed.

       The 3^rd party is not a defendant in the main action, but a defendant of the party at whose instance he has been joined.