CORAM
PARTIES
1. EJIOFOR APEH
2. LPDE CELESTINE
3. OSSAI MOSES (For themselves and on behalf of other ward Delegates for Enugu State on 1st November, 2014)
APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Applicants by a Motion on Notice approached the Court with an application for an Order granting leave to substitute the names of some Appellants who were the 1st to 3rd Respondents at the lower Court but who are no longer interested in pursuing the appeal with the names of the Applicant who are interested in the appeal, an order deeming the filed processes of the Applicants as properly filed and served The application is hereby considered by the Court.
HELD
Application Struck Out
ISSUES
Whether this Honourable court has the power to grant this application in the circumstances of this case?
RATIONES DECIDENDI
REPRESENTATIVE ACTION- DUTY OF PARTIES TO A REPRESENTATIVE ACTION
“The rule was that, if the plaintiff sued, or any of the defendants was sued, in a representative character, is must be stated on the Writ, and must also appeal appear in the title or heading of the Statement of Claim, Re Tottenham [1896] 1 Ch. 628. However, in such representative suits, both the named plaintiff and the un-named parties, that is, those they represent, are parties to the action; the only difference is that the named plaintiff, as it were, is in control of the suit [dominus litis] until the matter is disposed with at first instance”, Oketie v Olughor [1995] 5 SCNJ 217, 226; Ekenma v Nkpakara [1997] 5 SCNJ 70, 88.” PER C. C. NWEZE, J.S.C.
REPRESENTATIVE ACTION- STATUS OF A NAMED PLAINTIFF IN A REPRESENTATIVE ACTION
“Put differently, the named plaintiff is the sole plaintiff until judgment is given; as such he can discontinue, compromise, submit to dismissal and other things as he decides during the course of the proceedings”, Otapo v Sunmonu [1987] 2 NWLR (pt 58) 587.” PER CHIMA .C. NWEZE, J.S.C.
REPRESENTATIVE ACTION – PROOF OF COMMON INTEREST IN A REPRESENTATIVE ACTION
“Even then, the burden is on the plaintiff [and with respect to this application, the applicants herein] to establish a commonality of interests, Atane v Amu (supra); Ogamioba v Oghene (1961) 1 All NLR 59, 60. In all, the applicants have a duty to satisfy this court of the commonality of their interests. This must be evidenced in the following twin prerequisites, common grievance and a relief or reliefs beneficial to all of them, Ayinde and Ors v Akanji and Ors [1988] 1 NSCC 43, approvingly, adopting Ogamioba and Ors v Oghene and 0rs(1961) 1 All N.LR. 59, 60.”PER C. C. NWEZE, J.S.C
REPRESENTATIVE ACTION- POWER OF THE COURT TO SUBSTITUTE NAMES OF PARTIES IN A REPRESENTATIVE ACTION
“Where, however, he falls out with the un-named or represented parties for any reason, the court has power to add or substitute any person represented, though unnamed in the representative action, and to bring him in as at the date of the original writ, Otapo v Sunmonu, (supra) approvingly, adopting Moon v. Atherton (1972) 2 QB 435; (1972) 3 WLR 57;(1972) 3 All ER 145”. PER C. C. NWEZE, J.S.C
HEARING NOTICE- FUNCTION OF A HEARING NOTICE
“In the instant application, as in all such cases, the named plaintiffs were not only entitled to be served with the motion paper put also the hearing notice for hearing that was scheduled for October 27, 2015. This must be so for a hearing notice is the only legal means of getting a party to appear in court, Onwuka v Owolewa (supra). Thus, failure to issue and serve hearing notice is a denial of justice”. PER CHIMA .C. NWEZE, J.S.C
REPRESENTATIVE ACTION- PERSONS SUING OR DEFENDING IN A REPRESENTATIVE CAPACITY MUST HAVE COMMON INTEREST IN THE CAUSE OF ACTION
“What crystallizes from the earlier exposition on the point is that the jurisprudential postulate underlying suits in representative capacity is that the person or persons suing or defending in a representative capacity must have the same interest in the proceeding, Ogamioba and Ors v. Chief Ogene and Ors [1961] All NLR 59 at 62; (1991) 1SCNLR 115. This means that the parties on record [and those they represent] must have common interest.
Put differently, the subject matter must evince a common interest as opposed to diverse interests, Ukpon and Anor v Commissioner for Finance and Economic Development (2006) LPEI.R 3349 (SC); common grievance and the reliefs sough- must, in their nature, be beneficial to all the representatives and those represented. The Cases on this point are many, Market and Co Ltd. v. Smith and Ors v. Cardiff Corporation (1954) 1QB 210; Nsima v. Nnaji and Ors (1961) NLR 441; Amajideogu v. Ononaku (1988) 2 NWLR (pt,1978) 614; Idise v. Williams Int. Ltd. [1995) SCN3 120; [1995] 1 NWLR (pt. 370) 142; Ukatta v, Ndinaeze [1997] 4 SCNJ 137, 139; [1997] 4 NWLR (pt. 499) 251.
Others include: Oragbaide v Onitiju (1962) 1 All NLR 32, 37 citing Mark and Co. Ltd v Knight S.S. Co. Ltd (1910) K.B. 1021, per Fletcher – Moulton L J; Charter v Rigby and Co (1896) QB 113; Amachree v Newington 14 WACA 97; Ayinde and Ors v Akanji and Ors [1988] 1 NWLR (pt. 68) 70; Akporue v Okei [1973] 12 SC 137; Akpan and Anor v Commissioner for Finance and Economic Development and Anor (2006) LPELR -3349 (SC)”. PER C.C. NWEZE, J.S.C.
REPRESENTATIVE ACTION-REPRESENTATIVE ACTIONS AS ENSHRINED IN THE RULES OF EQUITY
“Characteristically, equity, in response, evolved its own rules which were adapted to meet the difficulties presented by a multiplicity of persons interested in the subject matter of litigation. Accordingly, the rules of equity allowed some of such persons to sue on behalf of themselves and all others having the same interest. Understandably, this was done to prevent a failure of justice,” The Taff Vale Railway Company v. Amalgamated Society of Railway Servants (1901) A.C. 426 (H.L).” PER C. C. NWEZE, J.S.C
ALTERATION OF PROCESSES BEFORE THE COURT- LEAVE OF COURT AS A CONDITION PRECEDENCE TO ALTERATION OF PROCESSES BEFORE THE COURT
“It cannot be otherwise for the character of any case at its inception remains so sacrosanct that only leave of court can affect any alteration in the case of transfer, transmission of interest or any other form of alteration of the parties to the proceedings”, PPA v. INEC [2012] 13 NWLR (pt 1317) 215, 236 -233, H-E.” PER C.C. NWEZE, J.S.C
REPRESENTATIVE ACTION – LIMITATIONS ON THE POWER OF A NAMED PLAINTIFF IN A REPRESENTATIVE ACTION
“The powers that inhere on the named plaintiff are hedged around with limitations. For instance, he can only represent those who have given him authority to do so, and in respect of a claim in which his interest in the subject matter is common with that of those he represents. He cannot, without their authority and order of Court authorizing him to do so, defend counter claims made against him in the principal action”, Smith and Ors v. Cardiff Corporation (1953) 2 All ER. 1373.” PER C. C. NWEZE, J.S.C
SERVICE OF PROCESS – EFFECT OF FAILURE TO SERVICE PROCESSES
“Truth told, service of processes, including hearing notices from day to day, is so important that any dereliction In this regard is bound to vitiate the entire proceedings, no matter how well conducted, Onwuka v Owofewa [2001] 28 WRN 89; [2001] 7 NWLR (Pt 713) 695, 710; Folorunsho v Shaloub [1994] 3 NWLR (pt 333) 413, 430; Mbadiniju and Ors v. Ezuka and Ors [1994] 10 SCNJ 109; [1994] 8 NWLR (Pt 364) 535; Sken Consult Nig Ltd v Ukey [1981] ISC 6; Habib Nig Bank Ltd v Opemulero and Ors [2000] 15 NWLR (pt 690) 315”. PER C. C. NWEZE, J.S.C
REPRESENTATIVE ACTION- THE NAMED PLAINTIFF ACTING IN A REPRESENTATIVE CAPACITY CANNOT DEPRIVED THE PERSONS SO REPRESENTED THE FRUIT OF THE JUDGEMENT
“After judgment, he cannot deprive other persons of the same class of the benefit of the judgment if they think fit to prosecute it, Handford v. Storie (1825) 2 Sim. and St. 196, Re,. Alpha Co (1903) J Ch 203; Re Calgary etc, (1908) 2 Ch 652, Watson V. Cave(No.1) 17 Ch.D. 19 Cotton LJ, approvingly, adopted in Otapo v Sumonu (supra).” PER C. C. NWEZE, J.S.C
CASES CITED
STATUTES REFERRED TO
Supreme Court Rules