Parties to a Civil Suit

See generally Orders 13 & 15

Abuja & Lagos
High Court (Civil Procedure)
Rules
2018 & 2019 respectively
 Learning Outcomes
1. State the persons that can sue and be
sued at law; select the appropriate
parties in respect of any cause of action
and discuss the capacity in which parties
sue or are sued; and explain the effects
of suing or being sued in a wrong
capacity;
2. Explain the procedures for bringing
proceedings by or against various
classes of parties and representative
suits;
3. Discuss the scope of class actions;
4. Explain the procedure for Joinder
and alteration of parties;
5. Discuss the principles and scope of
third party proceedings.
6. Draft the various applications on
parties
7. Identify and discuss ethical issues
involved in acting for and against a
party in litigation under duties of
lawyer to client, courts, the state and
the legal profession.
 Parties
[Meaning and Importance in Civil Suits]
‘The question of proper parties has been
held to affect the jurisdiction of the
Court, as it goes to the foundation of the
suit in limine, in which case the court
would lack jurisdiction to hear the suit.’
Per K. M. O. Kekere-Ekun, J.S.C.
G. & T. Investment Ltd. V. Witt &
Bush Ltd. (2011) 8 NWLR (Pt.1250)
500 @ 538 F-H.
 DEFINITION OF PARTIES
 Person or persons by whom or against whom a civil
action is instituted. Persons whose names appear on
the record as plaintiffs or defendants as the case
may be. See Green v Green (1987) LPELR-1338(SC)
 Generally, these are parties to the dispute brought
before the court
 Must be set out as part of the heading of the
originating and subsequent processes.
 Court process in a civil action without parties cannot
be comptetent and will be struck out.
Title of Parties in Civil Suits

Parties must be addressed by their proper

title depending on the court and nature of
proceedings.

A. HIGH COURT
1. Writ of Summons
Claimant/ Defendant (Abj/Lagos)
2. Originating Summons
(Same as Above)
 Title of Parties in Civil Suits

3. Originating Motion
Applicant/ Respondent (Abj &
Lag)

4. Petition
Petitioner/ Respondent’ (Abj
& Lag)
 Note Title of Parties before:

A. The Supreme Court,

B. Court of Appeal,
C. Magistrate Court of Lagos,
D. Note also where there are interlocutory
applications.
E. Applications pending appeal
See How Drafted?
 Entities that can Sue or be
Sued
a) Natural Persons
b) Artificial Entities who by statute
or common law are conferred with
i. Legal Personality or
ii. Right to sue and be sued in
their name.
Knight & Seale v Dove 2 ALL ER.307.
Management Ent. Ltd v Otusanya (1987) 2
NWLR 179
 Natural Persons

• Must be living.
• Can sue in their name or in
a representative capacity.
• Real names should be used
in the Originating Process.
 PERSONS UNKNOWN
 Where trespassers or occupiers are unknown in land
disputes defendants may be described as persons
unknown.
 Such defendants may apply to be substituted in lieu
of a “Person Unknown.” See 13/9, Abuja.
 Similar practice in Lagos but not expressly provided
in the rules.
 See also Form 38 pursuant to Order 57 r 2(2), Lagos
in proceedings against squatters where such a
person is described as “The Occupier.”
 NATURAL PERSONS.
POSERS:
• What happens where a party to
a suit dies? Or.15 r. 29 Lag.,
Or. 13 r. 30 Abj. – provides that
actions not abated where it is
one that survives a party.
• When does an action Survive a
Party?
 NATURAL PERSONS/ SURVIVAL
OF CAUSE OF ACTION

• Generally, liability in torts is

extinguished at the death of a
party to a case.
• This rule is modified nowadays to
mean that actions would generally
survive the parties except in cases
involving causes of action of
Strict Personal Nature.
 EXAMPLES OF WHERE ACTIONS DO NOT
SURVIVE PARTIES ARE

• Defamation cases.
• Seduction.
• Breach of Promise of marry.
• Actions for enticement and
harbouring
 ARTIFICIAL ENTITIES

1. CORPORATE ENTITIES.
a. Companies - Part B CAMA
b. Limited Liability Partnerships –
Part C
c. Incorporated Trustees – Part F
CAMA
d. Statutory Corporations
e. Corporation Sole – See next slide
f. Government.
 Corporation Sole
 Corporate Offices occupied by individuals who
embodies the office.
 The office continues to subsist even when the
occupiers die.
 E.g. Traditional Stool; Attorney-General; Governor;
The President of the FRN; The Speaker of the House
of Assembly/ Representative, office of a Minister,
CJN, COP, IGP, etc.
 Occupiers of such offices may sue or be sued in the
name or title of the office.
 2. NON CORPORATE ENTITIES

a) Statutory Bodies
-Kpebimohs v. Board of
Governors, Western Ijaw Teachers
Training College (1966) NMLR 130)
b)Partners/ Firms.
- Or. 13. r.25 (Abj) & Or. 15 r. 24
(Lag). Iyke Merchandise v Pfizer.
(2001) 10 NWLR (pt. 722) @ 543-547.
• In determining the competence of a
statutory body to be sued, the
instrument establishing a body,
which defines its powers, functions,
rights and duties need to be looked
into.
– Carlen v. University of Jos (1994)1 SCNJ
72 at 88
 Parties – General
Principles
• Only legal or juristic entities can
sue and be sued.
– Shitta & Ors v. Ligali & Ors (1941) 16
NLR 23; Adegbite & Ors. v. Lawal &
Ors. 12 WACA 398. Also see
Agbonmagbe Bank v. General Manager,
G B Ollivant Ltd. (1961) 1 ALL NLR 116
• Party must be easily identifiable.
– Yusuf v. Akindipe (2004) 5 SCNJ 128,
See G B Ollivant’s case.
• Party may amend but only to allow
for the correction of a Misnomer
( where a party is a juristic
personality but mis-described), not
where it will amount to introduction
of a new person into a case.
– Okechukwu & Sons v. Ndah
(1967)NMLR 366;
Cf.
Njemanze v Shell B. P. Dev. Coy. Port
Harcourt (1966) 1 ALL NLR 8.
EFFECT OF SUING IN THE
WRONG CAPACITY
• What in your view is the effect of suing
the wrong party or suing the right
person in the wrong capacity?
– See Order 13 r. 5 Abj & Order 15 r. 5
Lag.
An action commenced in the name of
the wrong person, the judge may
order the substitution or addition of
persons or correction on such terms as
may be just.
• Where a party to a suit is not
a legal entity, an Objection
can be raised to strike out the
suit.
– Shittu v. Ligali (1941)16 NLR
21. Also see Agbonmagbe Bank
Ltd v. General Manager G. B.
Olivant Ltd & Anor. (1961) ALL
NLR 116. cf. Okechukwu v
Ndah (1967) NMLR 368
 TYPES OF PARTIES
• It is important that the appropriate
person be sued, so as to properly
invoke a Court’s jurisdiction. This is
also to make such persons to be
bound by the decision in the case
or to meet procedural
requirements or for the effectual
determination of a case.
– Union Beverages v Pepsicola Int Ltd
(1994) 2 SCNJ 161
 A. PROPER PARTIES

• Person directly involved and

whose interest would be
affected if the relief in the suit
is granted.
– See; Mobil Producing [Nig] Ultd v.
LASEPA & Ors [2002] 12 SCNJ 1;
cf. Green v. Green [1987] 3 NWLR
[pt.61] 480, Yusuf v Akindipe
[Supra]
 B. Necessary Party

A person who ought to be

joined in an action for the
effectual and complete
determination of the questions
or issues involved therein.
Union Bev. Ltd v. Pepsicola
Int. Ltd [1994] 3 NWLR [pt.
330]. 1.
 C. NOMINAL PARTIES
• Party designated to be sued on
behalf of certain bodies or
institutions e.g. AG
Federation/State.
• Persons made parties in order to
avoid procedural irregularities.
– Padawa v Jatau [2003] 5 NWLR
[pt.813] 247; Plateau State v AG
(Fed) [2006] 3 NWLR [pt. 967] 346
D. DESIRABLE PARTIES

• Person whose presence is not

necessary for the just
determination of the issues in an
action, but is made party so as to
be bound by the decision of the
Court.
– See. Col. Hassan Yakubu [Rtd] v The
Gov. Kogi State & Ors [1995] 9 SCNJ
122
CLASSES OF PARTIES
 LEGALLY DISABLED /
INCAPACITATED PERSONS
• Order 1 r. 5 Abj & Order 1 r. 2(3)
Lag., define legal disability as
lack of capacity to institute or
defend an action by reason of age,
insanity, unsoundness of mind
or otherwise.
• Can sue through their guardian
and defend through their guardian
appointed for that purpose. Or. 13 r.
11 Abj., Or 15 r 9 Lag.
 A. Infants

• Minor someone who has not

attained the age of 18yrs.
Order 1 r. 5 Abj & Order 1 r.
2(3) Lag
• Can sue and be sued only
through Guardian appointed
for that purpose. Or. 13 r. 11
Abj., Or 15 r 9 Lag.
 HOW DRAFTED?
See Sofolahan & Anor v. Fowler
& Sons [2002] 4 NWLR [pt. 788] 664
It was held in Sofolahan’s case that it is:
• WRONG:
1) O.O SOFOLAHAN
(SUING AS GUARDIAN
OF OLABOSIPO SOFOLAHAN) …..
CLAIMANT
• CORRECT:
1) MASTER OLABOSIPO SOFOLAHAN
(AN INFANT) ( SUING OR SUED THROUGH
HIS GUARDIAN DR. O. O
SOFOLAHAN) ......................................
CLAIMANT
 LUNATICS/PERSONS OF
UNSOUND MIND

• Sue and defend by Guardian

appointed for that purpose.
Or. 13 r. 11 Abj., Or 15 r 9 Lag..

• How drafted ?
Qualities of a Guardian ad
litem
• Must be fit and proper.
• Interest must coincide with and not
adverse to that of the disabled.
• Should be close relative and reside
within jurisdiction.
• A written authority signed by the
guardian must be filed in the
Registry of the Court, before his
name is used. See Or. 15 r. 10 Lag. &
Or. 13 r. 12 Abj.
• HUSBAND AND WIFE.

Can you sue them both as Mr and

Mrs?
African Insurance Co. Ltd. v. Mr
and Mrs Esan. (1999) 8 NWLR (pt.
614) 197.
 Trustees
Executors/Administrators
• May sue or be sued on behalf of or
as representing the property or
estate in issue without joining any of
the persons beneficially interested in
the trust or estate. See Or. 13 r.
13(1)-(3) Abj. & Or. 15 r. 11 Lag.
• NB. Administrator lacks competence
until the letters of administration are
granted Estate of Abacha v. Ete -
Spiff
 How Drafted.
1. AB
2. CD
3. EF
(Suing as Administrators of the
Estate of A.X Deceased)……..
Claimants
See. Estate Abacha v Eke-Spiff
(2009) 7 NWLR pt. 1139 p. 97
– Beneficiary may be joined.
 Companies – Part B CAMA
• A company sues in its registered
name.
• A foreign registered company can
sue in the name with which it is
registered.
Bank of Baroda v. Iyalabani Coy.
Ltd. [2002] 13 NWLR (pt. 785)
551.
NB; Where a company’s legal
 Incorporated Trustees

• Incorporated Trusts sue and

are sued through their trustees
- ‘INCORPORATED TRUSTEES
OF AX’ – Part F CAMA 2020
• Unincorporated Trustees sue
through representative action
of natural members.
 Partnership or Firms

• Action is commenced in name of firm.

(Note arguments on legal personality.)
Iyke Medical Merchandise v. Pfizer Inc.
& Anor.
• See appearance and application for
disclosure and effect of failure to
disclose. Or. 13 r. 25 & 28Abj & Or. 15 r.
24-27 Lag.
• May be sued in either of 3 ways:
Partnership name, Names of
Partners or some Partners as
 Limited Partnerships (Part D)?
• Note CAMA 2021 – Limited Partnerships (LP)
vs. Limited Liability Partnerships (LLP)
Persons Trading in a Name
– Business Name
• Can sue and be sued in trading
name or style. Or. 13 r. 29, Abj
& Or. 15 r. 28 Lag.
 Power of Attorney

• Where Power of Attorney is

granted.
See Vulcan Gases Ltd v Olaniyi
Okunlola [1993] 2 NWLR [pt. 274]
139
 ATTORNEYS
BETWEEN:
JOHN MARTIN (suing through his
Lawful Attorney, DIM DOYE) ------------------------- CLAIMANT
AND
BLESSED HOSPITAL LIMITED --------------------------DFENDANT

OR

BETWEEN:
BLESSED HOSPITAL LIMITED --------------------------------------DFENDANT
AND
JOHN MARTIN (sued through his Lawful
Attorney, Dim Doye)--------------------------------------------------- CLAIMANT
 Statutory Bodies

• They are bodies created by statute

and invested with legal personality.
• E.g. Council of Legal Education
(consolidation) Act establishing
the law school confers legal
personality on the ‘Council’ not the
Nigerian Law School.
STATUTORY BODIES WITHOUT
CORPORATE PERSONALITY

• See. Kpebimoh v Board of Gov.

W.I .T.T.C [1966] NMLR 130
• Where it was held that an
unincorporated statutory body may
be held to be amenable to court
action in respect of the exercise of
its statutory powers. See also Carlen
(Nig.) Ltd v University of Jos (Supra)
 TRADE UNIONS

See common law power to sue and

be sued in contract, especially where
registered under the Trade Union
Act.
ACTION AGAINST GOVERNMENT

• See s. 20 Supreme Court Act. See also

Petition of Rights Act.
POSERS
• What happens where there is no sitting
AG?
• What is the effect of filing an action
against a state in the name of the state?
see Plateau State v. AG Fed.
• Actions against departments and
independent bodies est. under the
CFRN.
 REPRESENTATIVE ACTION

• This is where more persons than

one have the same interest in
one suit and one or more of such
persons are authorised by the
others to sue or defend the suit
on behalf of all persons
interested. Or. 13 r. 14 Abj. &
Or. 15 r. 12 Lag.
 REPRESENTATIVE ACTION

• This is common in cases involving

land holding families.
• Or in chieftaincy matters where a
ruling house or family has a
corporate interest. Momoh v
Olotu; Ladejobi v Oguntayo
• Etc.
 REPRESENTATIVE ACTION
• The real Claimant or Defendant in a
representative action is the family or
the group represented. Ladejobi v
Oguntayo.
• All benefits of the action enure to
both the named and un named
parties. So is any order made for or
against them.
• The representative capacity of parties
must be pleaded.
 Representative Actions
• THE TITLE READS:
1. AB
2. CD
(Suing for themselves and on behalf
of the EF Ruling House of Abeokuta)
OR
(Sued by themselves and on behalf of
the EF Ruling House of Abeokuta)
 CLASS ACTIONS
[Or. 13 r. 15 Lag & Or. 15 r. 13 Lag]

• This is a specie of Class action.

• Common interest
• Appointment of Class
Representative by the Court
• The Class Benefits are enjoyed
by all persons within the class,
except they have opted out.
 SUBJECT MATTER OF CLASS
ACTIONS

i. Administration of Estates,
ii. Property subject of trust or
iii. Land held under customary law as
family or community property or
iv. Construction of an instrument
v. The Abuja rules include ‘…torts
or any other class action.’
See.Or. 15 r. 13(1)(a) –(d) Lag
& Or. 13 r. 15(1)(a)-(e) Abj
 CLASS ACTION CONT’D
• Application by motion ex-parte for court to
appoint one or more persons to represent the
class.
• Any settlement must be certified by the court
• Judgment binds all members of the class
including the unborn except where judgment is
obtained by fraud or misrepresentation of
facts.
 JOINDER OF PARTIES
 Two or more persons may be joined in one suit as
claimants or defendants to prosecute or defend
their common reliefs jointly. Order 13 rr 1 & 4
Abuja; Order 15 rr 1 & 4 Lagos.
 Joint claimants must have the same interest and
not conflicting claims in the subject matter. It is
also desirable that they act by one counsel. IGE
FARINDE (1994)
 Joinder of parties is not joinder of causes of action.
If causes of action are different, no joinder. See
AMACHREE V NEWINGTON (1952)
 Conditions for Joinder

1. Right to a relief jointly, severally or in

the alternative.
2. Arising from a transaction or in a
series of transactions
3. A common question of law or fact
would arise even if parties brought
separate actions.
4. INTEREST MUST NOT CONFLICT
AND ALSO PARTIES MUST NOT BE
EMBARASSED OR TRIAL DELAYED
BY JOINDER.
 JOINDER OF PARTIES CONT’D
 Application for joinder may be by existing party or prospective
party/intervener
 Party to be joined must be a necessary party
 At any stage of the proceedings. Order 15 r 16 Lagos; Order 13
r 18 Abuja; EZENWA V MAZELI (1955); ODAHE V OKUJENI
(1973)
 May even be ordered on appeal. See INAKOJU V ADELEKE (LADOJA`S CASE)
(SUPRA); LAIBRU V BUILDING & CIVIL ENG CONTRACTORS (1962); YAKUBU V GOV OF KOGI STATE (1995).
MISJOINED PARTY could also be struck out on appeal.
OKAFOR V NNAIFE
 Order for joinder cannot be reversed by same court. Review is
possible only on appeal ONWUKA V MADUKA (2002)
 JOINDER OF DEFENDANTS

• Conditions same as Claimant. Or. 13

r. 7 Abj & Or. 15 r. 4 Lag.
• Defendants need not be interested in
all the reliefs. Or. 13 r. 6 Abj & Or.
15 r. 6 Lag.

• BULLOCK’S ORDER.
Or. 15 r. 8 Lag & Or. 13 r. 8 Abj.
Bullock v London General Omnibus
Co., Ekun & Ors v. Y ounam & Sons.
 2. NON JOINDER AND MIS-
JOINDER
• MEANING AND EFFECT – Strike out
or amend
• APPLICATION, HOW DRAFTED?
• NB. NOT A GROUND TO DEFEAT A
SUIT. Minister of Lagos Affairs v.
Onigbongbo . Also Or. 15 r. 16 Lag & Or.
13 r. 18 Abj.
• Note also stage at which joinder may
be made; Pretrial. May also be made on
appeal, See Yakubu v Gov of Kogi
[Supra]
• How to join(add) where there is
Non-joinder and to Strike Out
where there is misjoinder. Or. 13
r. 19 Abj. & Or. 15 r. 17
• Motion on Notice be
accompanied by statement of
claim or defence + exhibits +
statements on oath. See
consequential amendments. Or.
13 r. 19 & 20 Abj. & Or. 15 r. 17
& 18 Lag.
• Parties joined must be
 ALTERATION OF PARTIES
Circumstances That Could Warrant Alteration
Of Parties;
• Death, Bankruptcy, Devolution Or
Transmission Of Interest Etc.
• See In Case Of Death It Will Depend Of
Whether The Action Is One Which Survives
The Party Or Not. See Personal Actions And
Those That Relate To Property.
 DEATH OF A PARTY
 If a dead person is a sole party, action abates
because “personal action dies with the
person” (actio personalis moritur cum
persona).
 Exceptions -
(a) Where the cause of action survives the dead party Order
15 r 29 Lagos. Order 13 rule 30 Abuja.
(b) If death occurs between the finding of issues of fact &
judgement or after hearing is concluded but before
judgment. Order 15 r 30 Lagos. Order 13 r 31 Abuja
 After any substitution, processes would be amended to reflect
change.
 ETHICAL ISSUES
DUTIES OF A LAWYER TO THE
a) Counsel cannot represent parties with
opposing interests. Conflict of interest. r. 17
RPC
b) Duties of Dedication and Competence. – join
proper parties in proper capacity. r. 15 & 16.
RPC Do not sue to scandalize. r. 15 RPC
Represent within the bounds of law.
c) Counsel to deal with client with utmost good
faith as counsel is agent of party. See Or. 13 r.
34 Lag.
d) Change of Counsel. r. 15, 16 & 29 RPC 2007
THIRD PARTY PROCEDURE