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.

OVERVIEW OF THE CIVIL LITIGATION IN NIGERIA

Civil procedure is one of our bodies of adjectival laws. Its focus is to provide orderly and possibly expeditious methods for citizens to assert and defend their claims in court. What civil procedure does is that one must know how to present his case no matter how good the case seems, that is, knowing the procedures and rules laid down by law to take in litigation. Not following the rules is the reason most counsels lose their case.

This course is however made to enable legal practitioners to know the rules of court and to guide on how to apply such rules. Civil procedure rules are found in rules of court e.g. Customary Court, Court of Appeal, High Courts, etc; also in the constitution, statutes case laws (decisions of superior courts), etc. it should however be noted that each state has its own High Court rules, Customary Court rules, etc. but the substance are basically the same. Students should therefore be familiar with court forms like writ of summons, originating summons, petitions, motions, etc which are usually annexed to the rules of court. They should also be familiar with orders and rules.

Orders are referred to as actions while Rules are referred to as the procedures of taking such actions.

CIVIL DISPUTE RESOLUTION MECHANISMS – LITIGATION, A. D. R.

A. D. R simply means Alternative Dispute Resolution. It is the method by which parties to a dispute reach an amicable resolution of the dispute without the need to resort to Court or litigation. ADR could be Court connected or non-Court connected. It is the former when where the matter was already in Court and the parties agreed on an out of Court settlement while it is the latter where the parties mutually reach an acceptable agreement without recourse to Court.

TYPES OF A. D. R

1.      Negotiation;

2.      Mediation;

3.      Conciliation; and

4.      Arbitration.

Negotiation entails the parties discussing and agreeing to terms or reaching certain agreement without the aid or intervention of a 3^rd party. There are two types of negotiation viz. competitive or positional strategy (win/lose option) and co-operative or problem solving strategy (win/win approach). The former is a hostile negotiation in which the parties have set their mindset not to change their stand or compromise while the latter enables the parties to focus on their interest and pick from several options that will resolve the matter amicably.

Negotiation stages are Opening; Bargaining; Closing; and Execution. Negotiation styles are Soft; Hard; and Firm style. Sources of Power in negotiation are Competition; Legitimacy or authority; Precedent; Information; Investment; and Time. Negotiation tactics and tricks are Extreme initial position; Deadline; Threats; Promise; Emotions; Nibbles; Psychology play; Lack of authority or limited authority; and Numerical strength. However, it is advised that before you go into negotiation, prepare adequately by determining the Best Alternative To Negotiated Agreement (BATNA) as well as the Worst Alternative To Negotiated Agreement (WATNA).

Mediation is a non-binding dispute resolution mechanism involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution. The 3^rd party known as the mediator is impartial and does not take decision for the parties rather he helps and assists in identifying the issues and interests that need to be resolved. An agreement reached by the parties during mediation is enforceable if the terms of settlement are reduced into writing by the parties and witnessed by their counsel. The term of settlement will thereafter be filed in court and made the judgment of the court in form of a consent judgment.

Conciliation is the process of settling a dispute in an agreeable manner. It is a method by which a neutral person meets with the parties to a dispute and explore how the dispute might be resolved. However, he may deliver his opinion as to the merit of the dispute in necessary cases. There is a slim difference between mediation and conciliation and they are used interchangeably in some jurisdictions.

Arbitration is a method involving one or more neutral third parties who are usually agreed upon by the disputing parties and their decision is final. The decision arrived at by the arbitrator(s) is called an award, and same is enforceable like a Court’s judgment. The principal legislation dealing with arbitration in Nigeria is Arbitrators and Conciliation Act, Cap. A18, LFN 2004. click on the picture at your left or right hand side for more stories.

MULTI-DOOR COURT HOUSE

This is an alternative ADR process that is Court connected but not another ADR process, and it offers various processes of alternative dispute resolutions to the parties. It can be exercised by reference or referral by the Court in which case it is the Court that will advise the litigants to explore other ADR methods to settle their disputes. On the other hand, it can also be at the instance of the parties themselves where they agree to refer their dispute to the multi door house process for the resolution of their dispute. Where'd the multi-door Court House exists, cases filed in court go through a process of in-take screening in order to determine the appropriate door to use. Both the Abuja and Lagos High Court rules make provision for this process – Order 25 Rule 1 (c) Lagos; and Order 17 Rule 1 of the Abuja High Court Civil Procedure Rules.

Matters can be brought to the multi-door court house in any of the following 3 ways:

-         By Court referral i.e. the Court refers the matter to the Multi-Door Court House; or

-         By the parties walking into the Multi-Door Court House themselves; or

-         By direct intervention by the workers of the Multi-Door Court House of the Negotiation and Conflict Management Group (NCMG).

ADVANTAGES OF A. D. R

·         It is cheaper;

·         There is privacy;

·         It promotes reconciliation;

·         It saves time and cost; and

·         It encourages friendliness.

SOURCES OF CIVIL PROCEDURE

RULES OF COURT

Every court has its own rules e.g. Supreme Court Rules 1985, Court of Appeal Rules 2007, Federal High Court Rules of Lagos 2009, High Court of FCT (Civil Procedure) Rules 2004 and High Court of Lagos State (Civil Procedure) Rules, Sharia Court Rules, Magistrate Court Rules, District Court Rules, Customary Court Rules, etc.

It is always the statute creating the rules that states who makes the rules of court. Section 274 of the 1999 Constitution provides that a State High Court shall exercise jurisdiction vested in it by this constitution or by any law in accordance with the practice and procedure (including that of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of a State. In respect of service and execution of court processes especially superior courts of record, it is the Sheriff and Civil Process Act that is the principal legislation. This is because 2^nd Schedule, Pt 1 of the 1999 CFRN providing for exercise of legislative powers, has service and execution of court processes as item 57 in the Executive Legislative list. Therefore, rules made in exercise of the powers conferred under section 274 of the Constitution especially as regards service and execution of court process or under the respective High Court Laws, must conform to the Sheriff and Civil Process Act or be void to any inconsistency. Otherwise, if strictly followed as it ought to be, states are precluded from legislating on service and execution of court processes of superior courts of record which is in the Exclusive List – Nwabueze v. Obi Okoye [1988] 10 – 11 SCNJ. 60; where Justice Obi sued the defendant (Nwabueze) and Longman for libel. It was held that the writ of summons issued from (Anambra State High Court) in this suit is properly issued. The application to set it aside was thereby dismissed.

For the Federal High Court, the applicable rules regulating the practice and procedure is Federal High Court Rules 2009. Section 254 of the Constitution provides that subject to the provisions of an Act of the National Assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court.

For the Court of Appeal, section 248 provides that subject to the provisions of an Act of the National Assembly, the President of the Court of Appeal may make rules regulating the practice and procedure of that court. The Court of Appeal Rules 1981 amended in 1984 has now been amended by Court of Appeal Rules 2002 and finally by the 2007 Rules.

Section 236 vests in the Chief Justice of Nigeria the responsibility of making rules for practice and procedure of the Supreme Court. The applicable rule is now Supreme Court Rules 1985.

STATUTES CREATING THE COURT

Section 8(2) Court of Appeal Act confers power on the appropriate authority to make rules for the C. of A; section 7 of the S. C. A; and section 25 of C. of A. Act provides for filing of notice of appeal. Whenever there is a conflict between rules and statutes, the latter prevails.

Other statutes are Sheriff and Civil Process Act/Law; and Judgment Enforcement Rules which relate to service of process and enforcement of judgment; Companies Act and Companies Winding up Rules relating to practice and procedure for winding up of companies. Matrimonial Causes Rules relating to practice and procedure in matrimonial causes.

There is also the Constitution which enables the making of Rules of Court and other procedural rules. E.g. section 46(3) enables the making of the Fundamental Enforcement Rules while sections 248 and 236 enable the making of C. of A and S. C Rules. The constitution also provides for right of appeal.

COURTS WITH CIVIL JURISDICTION

S. C. N. is the apex court in the hierarchy of courts in Nigeria consisting of the Chief Judge and such other number of justices in the S. C not exceeding 21 as may be prescribed by an Act of the National Assembly – section 230(2) of the 1999 Constitution.

Court of Appeal (C. of A) follows in hierarchy consisting of a President and such number of justices not less than 49 of which not less than 3 shall be learned in Islamic Personal Law and not less then 3 also learned in Customary Law.

F. H. C was first known as Fed. Revenue Court but later changed to F. H. C by section 230(2) CFRN. The civil jurisdiction is defined under section 7(1) of the 1973 Act. However section 251 of the 1999 CFRN vested additional jurisdiction on it to have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from the revenue of the government in which the government is a party to the suit; taxation of companies; customs and exercise duties; bank disputes; admiralty jurisdiction including shipping and navigation on the River Niger or Benue (this was conferred on the FHC by section 9(1)(d) of the 1973 Act but as the decree does not define the scope of admiralty jurisdiction, its limit of the court is understood as prescribed by the administration of Justice Act of England 1956 – American International Insurance Company v. Ceekay Traders Ltd (1981) 5 SC 81 where the issue was to whether State High Court has jurisdiction arising from marine insurance. It was held that the High Court has jurisdiction to entertain the suit. By section 7(g)(h)(i) of the 1956 English Act, the admiralty jurisdiction of the High Courts covers: (i) any claim for loss or damage to goods carried in ship; and (ii) any claim arising out of any agreement relating to the carriage of goods in ship. The cause of action, to cover admiralty jurisdiction must inter alia have arisen on the high sea. The goods must have been lost on sea and not on board – A. M. C v. NPA (1987) 1 NWLR (Pt. 51) 475 where the plaintiff/appellant sued the respondents in the FHC for special and general damages for breach of contract of bailment, or breach of duty as bailee in custody of appellant’s goods. Respondents raised the issue of jurisdiction and the judge transferred it to the state HC to try the case. Plaintiff appealed to the C of A which upheld the decision of the trial judge, that the FHC had jurisdiction but reversed the order transferring the case to the State HC and struck out the claim. Plaintiff appealed to the SC which also upheld the decision of the C of A. However, disputes arising out of Int’l Documentary Credits do not always come under the admiralty of the jurisdiction of the court.

JURISDICTION OF THE F. H. C

Bronik Motors Ltd v. Wema Bank (1983) 6 S. C. 158 at 168 where the plaintiffs in ground 13 complained that the Fed. C of A (now C of A) and the Lagos High Court erred in law in failing to observe that jurisdiction over the claim in this action is vested in the F. H. C and not in the H. C of Lagos state.

Jamal Steel Structures Ltd v. A.C.B where the suit was on jurisdiction of H. C to deal with matters having regard to the provisions of the Fed. Revenue Court Decree, 1973. It was held that the F. R. C has jurisdiction and not the High Court of Lagos in reference to section 8(1) of the decree.

American Int’l Insurance case (supra)

Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212 – whether state HCs have admiralty jurisdiction; whether section 8(1) of FHC Act conferring exclusive jurisdiction on FHC is constitutional; whether any provisions of the 1979 Constitution limits unlimited jurisdiction of state HCs under section 236. The court emphasised that “the jurisdiction which the constitution specifically conferred on the FHC is that the court has concurrent jurisdiction with the SHC to grant redress for an infringement of a fundamental right under section 42. As regards the jurisdiction of the SHC, Idigbe J.S.C stated that a SHC has trial and appellate jurisdiction in respect of issues which are, by law (the constitution and the SHC law) but section 8(1) of the FHC Act 1973 is inconsistent with section 236 of the CFRN and is therefore void to the extent of the inconsistency. It was held that the FHC and SHCs have concurrent jurisdiction on admiralty matters.

Awoniyi v. Board of Customs and Excise (1990) 1 NSCC. 103 – power of SHC to transfer to the FHC a matter before it which it has no jurisdiction since the commencement of the 1979 CFRN. It was held that SHC has jurisdiction pursuant to section 236 of the CFRN

Nepa v. Edegbero – whether the HC of Niger state had jurisdiction to hear and determine the action which was brought before it by the plaintiffs in view of the CFRN (Suspension and Modification) Decree 107 of 1993. It was in the trial court that by virtue of Decree 107 of 1993 amending section 230(1) of the 1979 Constitution, a SHC had no jurisdiction to adjudicate in the matter before the court.

NDIC v. Okem Enterprises Ltd (2004) 10 NWLR (Pt 880) 107 – effect on respective jurisdictions of the FHC and SHC. The C of A held that the FHC has no jurisdiction to entertain causes and matters about individual customer and bank relationship. The SC however held that in so far as jurisdiction in dispute between an individual customer and his bank has been vested in SHC, sections 3(1) and 9 of the Failed Banks Decree (as amended) which vests jurisdiction on the same matters in the FHC must be seen as inconsistent with section 251(1)(d) of the 1999 CFRN. In that case, section 1(3) of the 1999 CFRN makes it void to the extent of his inconsistency.

STATE HIGH COURTS

Under section 236 of the 1979 CFRN, the SHC were courts of unlimited jurisdiction and as such any matter could be commenced there. In Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212, the S. C held that the SHC can exercise concurrent jurisdiction on matters upon which the FHC can exercise jurisdiction.

Awoniyi v. Board of Customs and Excise (supra). However, Section 38 of the Copyright Decree 1988 confers exclusive jurisdiction on the FHC. Also, section 560 of CAMD defines a court in the decree to mean the FHC. the foregoing provisions limited the extensive powers of the SHC to exercise unlimited jurisdiction so far as they relate to matters therein concerned.

Under section 251 of the 1999 CFRN, the jurisdiction of the SHC is limited which confers exclusive jurisdiction on the FHC in certain matters.

Under section 272, the SHC has jurisdiction in all matters except those that are made the exclusive preserve of the FHC by virtue of section 251 of the 1999 CFRN

POWER OF TRANSFER OF CASES FROM FEDERAL HIGH COURT

Under section2(2) of the FHC Act, it provides that no cause or matter shall be struck out by the FHC merely because such matter or cause was taken to the FHC instead of the HC of a State in which it ought to have been brought and the judge of the FHC before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate HC of the State. Section 26 of the Act deals with the powers of the FHC. In Mokelu v. Fed. Comm. for Works and Housing (1976) 1 NMLR 329 at 433. It was held that the FRC had no jurisdiction to hear and determine the action. Also, A.M.C v. NPA (1987) 1 NWLR (Pt 51) 475 (supra).

POWER OF TRANSFER OF CASES FROM STATE HIGH COURTS

The power to transfer a case must be in accordance with the rules of practice and procedure applicable to the SHC. The S. C held that the Lagos SHC under Order 22 Rule 3 has no power to transfer a case before it when it decides that it has no jurisdiction over such a case. The appropriate step to take is to strike out the action. See A.M.C v. NPA (supra). Also, Fasakin Foods Ltd v. Shosanya (2006) 10 NWLR (Pt. 987) 126 – whether a SHC can transfer a suit to the FHC on ground that it lacks the jurisdiction to hear it. It was held that where a court lacks jurisdiction, the order is to strike it out to enable the party commence the action de novo (afresh) in a competent court of jurisdiction. It should be noted that section 22(3) of the FHC Act relied upon which gives power to the SHC to transfer cases was struck out because it is inconsistent with section 1(3) of the 1979 CFRN.

SHARIA COURT OF APPEAL

This court has appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law. Section 277(2) of the 1999 CFRN deals with matters the court can adjudicate on which include marriages, family relationships, wills, succession, etc.

CUSTOMARY COURT OF APPEAL

Section 280(1) of the 1999 CFRN provides that there shall be for any state that requires it, a Customary Court of Appeal which shall consists of a President and such number of Judges as may be prescribed by a State House of Assembly. The President and Judges are however appointed by the Governor on the recommendation of the National Judicial Council.

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WINDING-UP OF BUSINESS AND NON-BUSINESS ORGANIZATION II (PARTNERSHIP, INCORPORATED TRUSTEE)

PARTNERSHIP

Partnership is the relationship which subsists between persons carrying on business in common with a view of profit – section 3(1) of Partnership Law of Lagos Cap. PI 2009

According to section 1(1) of Partnership Act, 1890, partnership is the relationship which subsists between persons carrying on a business in common with making a view. That is, it involves not less than two persons to start a partnership but not more than twenty (20) persons. A partnership of more than 20 persons will, as a general rule, be an illegal association – Akinlose v. A. I. T. Co. Ltd (1961) WNLR 503.

It lacks legal capacity and the partners are personally liable for the debts and liabilities of the partnership unless it is a limited partnership. The formation and terms may be evidenced by partnership articles under seal or by mere agreement which may be written or oral – Ojemen v. Okoafuda (1977) NCLR 192 at 197 – 198.

A partnership does not have perpetual succession like incorporated companies. Equality is the rule in partnership unless otherwise expressly stated. Though, every partner is also jointly and severally liable for the liability of the firm because there is no separate legal personality.

Partnership is based largely on the agreement of the parties. As such, there are several essential elements of partnership which are agreement, contribution to capital, and sharing of profit.

Thus, an association in existence must have 3 (three) characteristics before it can qualify as a partnership. These are –

1.      There must be a business – Henshaw v. Roberts (1966) NNLR 158; Uredi v. Dada (1988) 1 NWLR (Pt. 69) 237.

2.      The business must be carried on in common by two or more persons; and

3.      The intention must be to make profit – Ugorji v. Uzuokwu (1972) 1 All NLR (Pt. 1) 289.

Finally, every partner has a right to participate in the management of the firm except a sleeping partner (that is, one who is not active in the management of partnership) – section 5 and 24(5) of the Partnership Act. And, a partnership is not limited or circumcised by the ultra vires doctrine as they are empowered to undertake any kind of legitimate business of their choice.

DISSOLUTION OF PARTNERSHIP

This can be caused by any of the partners in the following ways –

1.      By act of the parties. This can be done either –

(i)                  By giving notice of intention to dissolve the partnership if provided for in the agreement – section 33(1)(c) of Partnership Law of Lagos; or

(ii)                By reason of ill-health making a partner permanently incapacitated and the partnership not being able to continue; or

(iii)               Where a partner creates a charge on his or her share of the partnership property – section 34(b) of Partnership Law of Lagos; or

(iv)              By providing for a clause like power of expulsion in the agreement.

2.      By operation of law if –

(i)                  It is for a fixed term at the expiration of the term – section 33(1) of Partnership Law of Lagos.

(ii)                It is for an undertaking at the performance of the undertaking – Ureli v. Dada (1988) NWLR (Pt. 69) 237.

(iii)               It is supervening illegality – section 35 of Partnership Law of Lagos.

(iv)              It is for death or bankruptcy of a partner – section 34(a) of Partnership Law of Lagos.

3.      By order of Court, in which a partner can apply that the partnership be dissolved based on –

(i)                  Mental ground; or

(ii)                Breach of agreement; or

(iii)               Permanent incapacity; or

(iv)              Carrying on the business at a loss or on any equitable ground – section 36 of Partnership Law of Lagos.

PROCEDURE

1.      Notice of requirement, dissolution, or expulsion is served on another partner referring to the appropriate clause in the partnership agreement.

2.      The partners prepare the dissolution agreement.

3.      Notice of dissolution is given to Corporate Affairs Commission, if registered.

4.      Notice of dissolution is published in the gazette and national newspapers.

5.      Notice of dissolution is given to clients or customers.

BUSINESS NAME

These are names registered by individuals and partners when carrying out business. Such business names are to be registered with the Companies and Allied Matters Act, Cap C 20 LFN 2004.

The registration of business names is administered by the Corporate Affairs Commission. Section 570 of CAMA provides that “there shall be established in each State of the Federation, a register office of business names where there shall be kept a register in the prescribed form in which shall be entered such matters as are required by this Act or any regulation made thereunder to be entered in it.”

DISSOLUTION OF BUSINESS NAMES

The Registrar has power to remove a business name from the register if the firm, individual or company is no longer carrying on business under the following circumstances –

1.      If the firm, company or individual ceases to carry on business in the business name.

2.      A notice shall be delivered or posted to the Registrar within three (3) months after the business has ceased to be carried on, stating that the firm or individual has ceased to carry on business – section 578(1) of CAMA.

3.      Upon delivery of the notice to the Registrar, the Registrar may remove the firm, company or individual from the register.

4.      If the Registrar has reasonable cause to believe that the firm, company or individual is not carrying on business, the Registrar may send a notice to the firm, company or individual enquiring whether or not the business is being carried on. Where there is no response within two (2) months, or the answer to this is that there is no business being carried on, the Registrar may remove the business name from the Register – section 578(3) and (4) of CAMA.

INCORPORATED TRUSTEES

This is provided for under PART ‘C’ of CAMA. It is any class of persons bound together by custom, kinship, nationality or any association for educational, literary, cultural or charitable purpose – section 590 of CAMA. It must not be profit oriented.

From the date of registration, the trustee(s) shall become a body corporate by the name prescribed in the certificate and shall have perpetual succession, common seal, legal capacity, and power to hold and dispose land – section 596(1) of CAMA. The common seal must have a device approved by the Commission, and any instrument to which the seal is affixed in apparent compliance with the regulation for the use of the seal is binding on the corporate body notwithstanding any defect or circumstance affecting the execution of such instrument – section 604 of CAMA. The corporate body may contract in the same form as an individual – section 605 of CAMA. Though, no portion of the property may be paid or transferred in any form to any of the members of the association – section 603(1); except as bona fide and reasonable payment for services – section 608(5) of CAMA.

The name or objects of the corporation may be altered or changed – section 597 of CAMA. the trustees shall apply to the commission in the prescribed form setting out the alterations desired and attaching a copy of the resolution approving the change and duly certified by the trustees. If satisfied that the proposed change is prima facie lawful, the committee shall cause it to be published in two daily newspapers in the same way as an application for incorporation, calling for objections. It shall also direct the corporation to display a notice for the proposed change or alteration in a conspicuous place at the corporation’s office and any such place where a majority of members are likely to see it for a period of at least 28 days – section 597(2) of CAMA. If the Commission assents to the application, the alteration shall be made and in the case of a change of name, the Commission shall issue a new certificate in the new name in place of the former certificate – section 597(4) of CAMA.

A trustee must not be –

1.      An infant,

2.      A person of unsound mind,

3.      An undischarged bankrupt, or

4.      A person who has been convicted of an offence involving fraud or dishonesty within five years of his proposed appointment – section 592(1) of CAMA.

The trustees of a corporation are required to deliver to the Commission an annual return showing, inter alia, the particulars of the corporation, that is, the name, address and occupations of the trustees, and members of council or governing body, etc. The return must be submitted not earlier than 30^th June or later than 31^st December of each year, but no return is required for the year in which trustees are incorporated – section 607(1) of CAMA.

The corporation may be dissolved by the court on a petition which may be brought for that purpose by the governing council or body, or by one or more of the trustees, or by members of the association constituting not less than fifty percent (50%) of the total membership or by the commission – section 608(1) of CAMA. It shall be dissolved if the aims and objectives have been fully realized and there is no longer need for its existence, or that its aims and objectives have become illegal or otherwise contrary to public policy, or that it is form for a specified period which has elapsed, or that it is just and equitable in all the circumstances that it should be dissolved – section 608(2) of CAMA.

After dissolution of the corporation, and satisfaction of its debts and liabilities, any remaining property of the corporation cannot be distributed to members of the association, but must be given or transferred to some other institutions having objects similar to those of the body – section 608(4) of CAMA. In cases where the property is not transferred to such institutions, it may be transferred to some charitable object – section 608(5) of CAMA.

DISSOLUTION OF INCORPORATED TRUSTEE

This may be dissolved through the following –

1.      Dissolved by the Federal High Court upon a petition brought for the purpose of dissolution by any of the following persons –

a)      The governing body or council; or

b)      One or more trustees; or

c)      Members of the association constituting not less than fifty per cent (50%) of the total membership; or

d)      The commission – section 608(1) of CAMA.

2.      At the hearing of the petition, all persons whose interest or rights may be affected, in the opinion of the court, shall be put on notice.

3.      If there remains after the satisfaction of all its debts and liabilities, any property whatsoever, such shall not be paid or distributed among the members of the association but shall be given or transferred to other institutions having similar objects to the objects of the body, such institutions to be determined by the members of the association at or before the time of dissolution or be transferred to some charitable object – section 608(3),(4) and (5) of CAMA.

The grounds upon which an application for dissolution can be done are –

1.      That the aims and objects for which it was established have been fully realised and no useful purpose would be served by keeping the corporation alive;

2.      That the body corporate is formed to exist for a specified period and that period has expired and it is not necessary for it to continue to exist;

3.      That all the aims and objects of the association have become illegal or otherwise contrary to public policy; and

4.      That it is just and equitable in all the circumstance that the body corporate be dissolved – section 608(2) of CAMA.

ETHICAL ISSUES

1.      Rule 14(1) of Rules of Professional Conduct (RPC), 2004 – A lawyer shall dedicate and devote his time to his client, to act in a manner consistent with the best interests of the client.

2.      Rule 16 of RPC – A lawyer shall represent his client competently.

(sample draft on notice of dissolution)

NOTICE OF DISSOLUTION

To ............................................................ (name of the partner to whom notice is to be given)

Pursuant to clause .................................... of our partnership agreement (or deed of partnership) dated the ........................................... day of ....................................

I hereby give you notice dissolving the partnership subsisting between us under the said agreement (or deed).

I hereby exercise my option to purchase on the date of dissolution your share in the partnership on the terms therein stipulated.

Dated this................. day of ................................. 20......

_____________________________

Signature of partner(s) giving notice.