TYPES OF PARTIES IN A LAW SUIT

                                              

Parties to an action can be classified into six namely:

a)      Proper Parties: These are those who though not interested in the plaintiff’s claim, are made parties for some good reasons, for example, in a land matter where the plaintiff is claiming the ownership of a parcel of land against the defendant, all other persons sharing boundaries with the plaintiff on the disputed land are proper parties to the action.

b)      Desirable Parties: These are those who have an interest or who may be affected by the outcome of the suit and there interest will be prejudiced if they are not joined as parties – A. G Federation v. A. G Abia State & 35 Ors. (2002) 6 NWLR (Pt. 763) 264.

c)      Necessary Parties: These are those who are not only interested in the subject matter of the proceedings but who also, in their absence, the proceedings cannot fairly be dealt with – Green v. Green (1987) 3 NWLR (Pt. 61) p. 480; Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) p. 546

d)      Statutory Parties: These are those who are by provision or the constitution may be made party to a suit e.g. suit between Federal Government, States, National Assembly, etc. This can also be taken as nominal parties.

e)      Nominal Parties: These are those who have no direct interest in subject matter but made a party by virtue of his office e.g. A. G of the State or federation in actions against the government.

f)        Party by standing by: These are those who are aware of the full knowledge of a pending suit but was content to stand by and see his battle fought by someone else in the same case in which he has interest, he is bound by whatever result and will be estopped  – A. G Federation v. A. G. Abia State (No. 2) (2002) 6 NWLR (Pt. 764) p. 542

The major types of parties are proper parties, desirable parties, and necessary parties.

CAPACITY TO SUE AND BE SUED

This can be seen under Order 11 Rule 10 Uniform Procedure Rules, Kano (UPR) Order 10 Rule 11 Abuja High Court Rules, and Order 13 Lagos High Court Rules.

A plaintiff/claimant to an action must be competent to institute such an action to sue or be sued. If his competency is challenged, the onus of proving that he has the legal capacity to institute the action lies on him. Likewise, a plaintiff cannot maintain an action against a defendant who has no capacity to be sued – John Holt Ltd. v. Leonard Ezeafulukwe (1990) 2 NWLR (Pt. 133) 520.

Thus, competency to sue and be sued is an important factor in deciding the competence of the action itself, since it is essential that persons who are made parties to an action must be legal persons. – Bank of Paroda v. Iyalabani Co. Ltd.

Parties to civil proceedings therefore must have the capacity to sue and/or be sued.

CLASSES OF LEGAL PERSONS

These are classified into natural persons and artificial persons.

As a general rule, only persons be it natural (human beings) or artificial (persons created by law or incorporation with the CAC) not subject to any legal disability can sue or be sued – Agbonmagbe Bank v. G. B Olivant; Obasanjo v. Buhari (2003) 17 NWLR (Pt. 580) 510 at 577.

Capacity or lack thereof may be considered under the following categories:

NATURAL PERSONS

1.      Adults: They have the capacity to sue or be sued in their name(s).

2.      Infants: They naturally lack the capacity to sue and be sued. They may nonetheless, sue as plaintiffs by their next friends and may be defended by guardian ad litem appointed for that purpose, who must enter appearance for or on their behalf – Order 10 Rule 11 and 13 Abuja High Court Rules

3.      Lunatics or Persons of unsound mind: They also lack the capacity to sue. They may sue as plaintiffs by their Committees in Lunacy or Next Friends and may in like manner defend actions by their Committees or Guardians appointed for that purpose – Order 10 Rule 12 Abuja High Court Rules.

4.      Partners: They may sue or be sued in the name of the partnership or in their individual names – Order 10 Rule 10 Abuja High Court Rules – Iyke Medical Merchandise v. Pfizer Inc. (2001) 5 SCNJ 12. Moreover, by Order 13 rule 26 Lagos High Court Rules, any person carrying on a business in a name or style other than his own name may be sued in such name or style as if it were a firm’s name and so far as the case will permit all rules relating to proceedings against a firm shall apply. However, such a person can only be sued in that name but he cannot sue in his trade name.

5.      Locus Standi: A party before instituting or defending an action before the court must have the locus standi to do so. In Adesanya v. President (1981) ANLR 1; (1981) 5 SC 112, where the term locus standi was defined as the interest a party has in the subject matter of the suit. Also,  in Fawehinmi v. IGP (2002) 7 NWLR (pt. 767) 606 where the Supreme Court restated that section 6(6)(b) of the 1999 Constitution does not confer locus standi on a litigant but merely confers jurisdiction on a court to determine any question as to his civil rights and obligations.

ARTIFICIAL PERSONS

1.      Trustees, Executors, and Administrators: They may sue as representatives of the estate or property of which they represent or are trustees.

2.      Non-Legal Personalities: Also known as Unincorporated Association generally cannot sue or be sued in their names, as they are not legal personalities. They generally sue or are sued through representatives – Fawehinmi v. NBA (No. 2) (1989) 2 NWLR p. 105 at 558; Nigeria Nurses Association v. A. G Federation (1981) 11 – 12 SC 1.

3.      Incorporated Companies: These are companies registered by CAC and they can sue or be sued in the name of their registered company – Njamanze v. Shell B. P Dev. Co. Port Harcourt (1966) 1 All NLR 8.

4.      Statutory Bodies: These are bodies like PHCN, NITEL, etc. which can sue and be sued in their statutory names depending on the instrument creating the body.

It should be noted that once a party lacks the capacity to institute or defend an action, the proper order to make is striking out the suit, depending of course on the number of plaintiffs or defendants – Amodu Rufai Shitta v. Momodu Ligali (1941) 16 NLR 23.

REPRESENTATIVE ACTIONS

These are actions or suits instituted and/or conducted by one or more plaintiffs or defendants for and on behalf of other parties (plaintiffs or defendants) to the suit – Order 10 Rule 8 Abuja High Court Rules; Order 13 Rule 12 Lagos High Court Rules; Order 11 Rule 8 UPR – Atanda v. Olanrewaju (1988) 4 NWLR (pt. 89) 394.

Representative suits 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 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:

1.      That those represented must have a common interest and a common grievance;

2.      That the relief sought must, in its nature, be beneficial to all those being represented; and

3.      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 very necessary to understand when a suit can rightly be in a representative capacity. Where parties have different causes of action or suffered independent damages, a joint action as plaintiffs may be instituted and not a representative suit – Shell Devt. Company Ltd v. Otoko (1990) 6 NWLR (Pt. 159) 693; Oragbaide v. Onitiju (1962) 1 SCNJ 70 (1962) 1 ANLR 32.

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.     A (suing as a representative of the ABC family ………….            Plaintiff

And

B.     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 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 – Order 10 Rule 1 Abuja High Court Rules; Order 13 Rule 1 Lagos High Court Rules.

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 – Order 10 Rule 3 Abuja High Court Rules; Order 13 Rule 4 Lagos High Court Rules. 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

This can be seen under Order 13 Rule 13 Lagos High Court Rules.

These are situations where:

1)      Persons affected are either known or unknown but not found;

2)      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;

3)      In Lagos, class action is limited to Administration of estates; Property subject to trust; Family land under customary law; Construction of instrument or statute – Order 13 Rule 13.

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 – Order 10 Rule 5(1) Abuja High Court Rules; Order 13 Rule 16(1) Lagos High Court Rules.

A party complaining of not being joined or of not being made a party to the suit must satisfy the court that:

1)      He is entitled to some share or interest in the subject matter of the suit;

2)      He is likely to be affected by the outcome of the suit; and

3)      If he is not made a party, the case cannot be decided with finality – Order 10 Rule 5(1) Abuja High Court Rules; Order 13 Rule 19 Lagos High Court Rules.

The court in deciding whether there should be joinder where non-joinder exist would have to resolve the following issues:

1)      Is the cause or matter liable to be defeated by the non-joinder.

2)      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.

3)      Is the party or person someone who ought to have been joined ab initio.

4)      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 – Order 10 Rule 5(3) Abuja High Court Rules; Order 13 Rule 19 Lagos High Court Rules.

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 – Order 10 Rule 35 Abuja High Court Rules. But the death of a plaintiff or defendant shall not cause a suit to abate if the cause of action survives – Order 10 Rule 36 Abuja High Court Rules. 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 – Order 10 Rule 37 Abuja High Court Rules.

It can also arise where a party becomes bankrupt, or an unmarried female become married or where there is an assignment, transmission or devolution of the interest or liability of the party in the pending suit. However, whether this succeeds or not will largely depend on the nature of the case. That is, whether it is a personal action (determining the rights and interests of the parties themselves in the subject matter) or an action in rem (determining the title to property and the right of the parties, not merely among themselves but also against all persons claiming an interest in that property).

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:

1)      Actions arising out of contract will survive the death of either party thereto;

2)      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:

a)      Actions for breach of promise to marry;

b)      Actions for seduction;

c)      Actions for enticement and harbouring; and

d)      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) – Order 10 Rule 38 Abuja High Court Rules.

THIRD PARTY NOTICE OR PROCEEDINGS

This is a special procedure created by the rules of Court in favour of a defendant only.

Under Order 11 Rule 17 UPR, 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 Order 10 Rule 18 Abuja High Court Rules; Order 13 Rule 19(1) Lagos 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 Abuja High Court Rules and UPR provides for two procedures for the issue and service of a third party notice viz.:

a)      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

b)      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.  In Lagos, the procedure is only by way of motion ex parte. – Order 13 Rule 19(1) Lagos High Court Rules.