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22 Jan

CIVIL LIT WEEK 4 PARTIES TO A CIVIL SUIT

FOR THE LOVE OF CHRIST JESUS; THE BEGINNING AND THE END.

WEEK 4

PARTIES TO A CIVIL SUIT.

:: CAPACITY: An action must be brought by a competent legal person(s) (natural or artificial) in a court of competent jurisdiction else it would be void-Agbonmagbe Bank Ltd V General Manager, GB Ollivant Ltd (1961) 1 All NLR 366. Shitta V Ligali (1941) 16 NLR 21 @ 23- “Executives of Central Mosque Lagos” could not sue. He who alleges capacity must prove.

With proper name. Although improper joinder or naming/spelling can be regularised by the court where it would not eradicate the current proceedings-So Safe Table Water V Ayinoluwa, Plateau State V A.G. Federation.

:: CONFERMENT AND PROCEDURE.

ENTITY MAY SUE OF BE SUED THROUGH
Partners Name of the firm.
Infants next friend/guardian
Lunatics/Unsound committee in lunacy/next friend/guardian
PR Estate. No need to join the beneficiaries.
Wife No longer through husband. Now can sue in her name-MWPA.
Unincorporated Associations. Generally non-entities but since it can do certain far reaching acts some of which may cause injury, it may be sued-Bonsor V Musicians Union (1995) 3 All ER 518.
Registered Associations Through registered trustees. See however Gani Fawehinmi V NBA (No.1. (1989) 2 NWLR (pt. 105) 494 at 532.
Statutory Bodies Their Corporate Name
Government Attorney General of Federation or State as the case may be.
Representative Actions

Move away from table.

Where numerous persons have the same interest in a suit (e.g. family) for convenience, one or more appointed by the court or judge in chambers can defend the matter on behalf of the others. E.g. Family head, PR, partners, next friend, etc.

 

 

:: TYPES OF PARTIES

a.)          Proper Parties—Those directly affected by the subject matter of suit-Mobil Producing Ultd V LASEPA (2002) 12 SCNJ 1. Green V Green

b.)          Desirable Parties—Those that may be affected and can be joined to the suit-Green V Green.

c.)          Necessary Parties—are parties who are needed for the effectual determination of the case-Green V Green.

d.)          Nominal Parties—are parties who may not have interest but (nevertheless) should be joined by virtue of his/her office. for example A.G. Speaker.

Peenok Investment Ltd V Hotel Presidential Ltd (1982) NSCC 477.

:: CLASS ACTIONS: Best adopted (motion on notice) when a broad spectrum of people are affected some cannot be ascertained. In Abuja it is used for declarations and injunctions. Or 10 Rule 9 Abuja. In Lagos it is used for interpretation and administration of estate, and family and communal property Order 13 Rule 13 Lagos Rules.

:: JOINDER OF PARTIES See generally Or 10 R 1 Abuja, Or 13  R 1 Lagos State Civil Procedure Rules.: Where their respective claims arose from similar transaction(s) and could be determined under a common question of law or fact, the parties could be joined through motion on notice with affidavit deposing reasons why he be joined, written addresses (exhibits to be relied upon and deposition of witnesses) Court may then order that they be joined and adjourn for originating processes to be amended and new party(ies) to be served. To prevent multiplicity of actions-A.G Federation V A.G Abia State[1].

:: JOINT PLAINTIFFS: Or 10  FCT. 13 Lagos. Refer to joinder of parties above. When they have been joined, they are regarded as joint plaintiffs.

:: JOINT DEFENDANTS: Or 10  FCT. 13 Lagos.

:: MISJOINDER OF PARTIES: where a party with no interest or cause of action ni the suit is joined as a party. Such name can be struck out suo moto or on application during proceedings or on appeal. Or 10 Abj, 13 Lagos.

:: NON JOINDER OF PARTIES: where a person who ought to be made a party to the suit (necessary/proper[2]) is not (joined). Court can adjourn for such people to be served and joined then bound Or 10 Abuja, Or 16 Lagos

:: ALTERATION OF PARTIES: Parties may also be turned from plaintiff to defendant if it is necessary for the just determination of the case.

Circumstance may change as the case develops. A party may become bankrupt, marry, assign his interest, etc.  where the action is not a personal one that terminates terminates with the party (i.e. personal service, torts of assault, battery, etc although it may survive if one plaintiff/defendant is remaining). The Legal representative may apply () to take over or join the surviving plaintiff/defendan to continue the action. Or 10 Abuja.

Parties by intervention: one who may[3] not have interest in the action but for statutory or public policy reasons, should be joined for the effectual determination of the case-Ige V Farinde.. E.g. A.G, Donor of POA

PREPARE YOUR OPINION ON JOINDER OF PARTIES USING CASE STUDY 2.

:: SURVIVAL OF PARTIES;

:: THIRD PARTY NOTICE / PROCEEDINGS: Or 13 Lagos, Or 10 Abuja: The defendant (only[4]) may bring application by motion ex parte (supported by affidavit showing why) for the joiner of a person as third party as he would likely bear eventual liability (in whole or part)-Okafor V ACB Ltd and Another (1975) 5 SC. 89. The third party would be brough to court through the motion exparte or summons within 8 or 30 days as the case may be (Abuja). To prevent multiplicity of suits. The third party would be bound-Bank of Ireland V UBN, Okafor V ACB. Third party proceeding survives the suit (it appears plaintiff may apply to strike out application, the third party may also prove that he is not indebted to the defendant, etc. they be heard.

:: ETHICAL ISSUES INVOLVED.

 

 

 

[1] There has been issues as to whether joinder can be ordered on appeal but Laibru Ltd V Building & Civil Engineering Contractors (1962) notes that it can be made on appeal although dissenting views exists. Yakubu V Governor of Kogi State, it was ordered on appeal as it was desirable that the joinder be made.

[2] consider whether the joinder is necessary, bona fide

[3] Meaning he may or may not have a personal interest in the action to protect.

[4] Or plaintiff who is defendant in counter claim.

Isochukwu

Quite eccentric really

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