PARTIES TO A CIVIL ACTION

Question 1

Who is a proper party?

Answer 1

A proper party is one that is directly connected to the cause of action.
It is one whose interest will be affected directly if a relief claimed in the action were granted.
The non joinder of a proper party may be fatal to the suit.
MOBIL V LASEPA

Question 2

Who is a desirable party?

Answer 2

-A desirable party is one who has an interest in the subject matter of litigation. The non joinder of a desirable
party is not necessary for the determination of a suit but may be affected by the outcome
of the proceedings.

Question 3

Who is a necessary party?

Answer 3

A necessary party is one whose absence will affect the successful determination of a case. Such party has an interest in the subject matter of the suit.
A necessary party ought to be joined for the successful determination of the suit.
UNION BEVERAGES v PEPSI COLA

Question 4

Who is a nominal party?

Answer 4

A nominal party is a person that is a party is an action or is made a party by virtue of his office. The person is usually the medium through which an organization or institution can sue and be sued.
A nominal party is simply a party in name and may not have any personal interest but to avoid procedural effect, he should be joined.
Padawa v Jatau

Question 5

What are the classes of legal persons recognized by law?

Answer 5

1. Natural persons-Living beings
2. Artificial persons-Institutions or bodies that are regarded as persons in law-SEC 37 CAMA

Question 6

Who are juristic persons under the Law?

Answer 6

a. Natural persons (human beings);
b. Companies incorporated under the Companies Act;
c. Corporations sole with perpetual succession;
d. Trade unions;
e. Partnerships;
f. Friendly societies.
Iyke Medical Merchandise v. Pfizer Inc. & Anor
The general manager, chairman are not legal persons.

Question 7

What happens when a party has no capacity to institute an action?

Answer 7

The action is bound to be struck out by the court.
SHITTA & ORS v LIGALI & ORS

Question 8

How do you file an action in representative capacity when your company/organization lacks juristic personality?

Answer 8

“For themselves and on behalf of the other members of Koko Community”
Bring in an action in the representative capacity.

ADEGBITE v LAWAL

Question 9

what happens when a party is misdescribed?

Answer 9

if the parties to the suit are not misled and it will not amount to a miscarriage of justice, the mis-description will not be fatal to the case.
it will be treated as a misnomer which can be corrected by the court through an application for amendment.
Okechukwu & Sons v Ndah

Question 10

can you sue incorporated trustees?

Answer 10

yes! an example is suing the Chosen Church of God, it will be:
THE INCORPORATED TRUSTEES OF THE CHOSEN CHURCH OF GOD……CLAIMANT

Question 11

How do you sue as a Trustee, Administrator and Executor?

Answer 11

Suing as the administrators of the estate of Mr John Ali, Deceased

Question 12

How can partners be sued?

Answer 12

1. They can sued in the name of the firm & an application can be made to the court that the name of the partners should be furnished
2. They can be sued jointly
3. An action can be brought against one partner as a representative provided that a claimant who brings an action against such partners cannot institute a matter in court after judgment on the same subject.

Question 13

How to sue a registered business name?

Answer 13

I.e Mr Nwori has a registered business name known as “Mr Nwori and sons”
THE DRAFT
Mr Nwori(trading under the name and style of Mr Nwori)

Question 14

How do persons under legal disability sue?

Answer 14

JOHN MARK(AN INFANT)(SUING THROUGH HIS GUARDIAN, MR POLYCARP)
same draft for a lunatic.

Question 15

When is persons unknown used?

Answer 15

LAND MATTERS and efforts has been made to identify the trespassers.
In this circumstances, the defendant will be described as “PERSONS UNKNOWN”

Question 16

What is a representative action?

Answer 16

It is an action filed by one person or more persons authorized on behalf of other persons having the same interest in respect to the subject matter of litigation.
ORDER 13 ABUJA
MOTION EX PARTE+A+WA

All benefits of the action enure to both the named and un-named parties. So is any order made for or against them.

Question 17

Where a party’s capacity to sue is challenged, where does the onus lie?

Answer 17

On the party which alleges that it has capacity!

Question 18

What are the Qualities of a Guardin Ad Litem?

Answer 18

1. He must be fit and proper.
2. Interest must coincide with and not adverse to that of the disabled.
3. Should be close relative and reside within jurisdiction.
4. A written authority signed by the guardian must be filed in the Registry of the Court, before his name is used.

Question 19

What is class action?

Answer 19

Class action is used where;
-cannot be ascertained
-cannot be readily ascertainable
-If ascertained, Parties cannot be found
-If the parties are ascertainable and can be found, where the court deems it necessary, it may appoint a person to file an action on behalf of all the group of persons.
LEAVE OF COURT IS REQUIRED
MEP+A+WA

Question 20

What is derivative Action?

Answer 20

An action brought on behalf of a company.
-A cause of action must have arisen from an actual or proposed act or omission involving negligence, default or breach by a director
-Notice has been given by the applicant stating his intention to apply to court if the directors fail to take proper action
-the notice contains factual basis for the claim
-the applicant is acting in good faith
-it is in the interest of the company that the action be brought

Question 21

What is Joinder?

Answer 21

Joinder for Claimant-Same reliefs must be sought before a person can be joined.
Joinder for Defendant-Where a party is not sure as to who is liable/to sue, then the law allows him to add such party.
Where two persons are jointly or severally liable to the claimant, they may be joined as co defendants in the suit.

ORDER 15 LAGOS & 13 ABUJA

Question 22

When can joinder be made?

Answer 22

At any time even on appeal!
Under the Abuja and Lagos rules, it can be made at PTC/CMC
The parties sought to be joined must be necessary parties.
YAKUBU V GOV OF KOGI STATE

Question 23

What is the purpose of Joinder?

Answer 23

1. To avoid multiplicity of suits
2. To avoid undue delay
3. To save the time of the court
4. To ensure all necessary parties are brought before the court
   AGAH & ors v ONAH & ors

Question 24

What is Bullock order?

Answer 24

It occurs whereby the court orders the claimant who joins an innocent defendant to pay costs to that innocent defendant and the defendant reimburses the claimant for the costs paid and other expenses.

Question 25

What is non joinder and misjonder?

Answer 25

Non Joinder occurs where a necessary party needed for the determination of a suit is not joined as a party.

Misjoinder occurs where a wrong party is joined as a party. The court may suo motu order that such party’s name be struck out or a party may apply.
Non joinder is not a ground to defeat an action

Question 26

What are the documents to be attached to an application for joinder?

Answer 26

1. Motion on notice
2. Affidavit
3. Written Address
4. The statement of claim
5. List of documents to be relied upon
6. Written depositions of statements on oath
   All parties must amend their processes(writ & pleadings) to reflect the new additions and serve on the new parties

Question 27

Who is a party by intervention?

Answer 27

It is an application made by an intervener stating that he should be joined as a party(unlike joinder that is made by existing parties).
MON+A*WA
The affidavit must state the reasons why he wants to join & must be served on all parties to the suit.
HASSAN YAKUBU V GOV OF KOGI STATE

Question 28

Conditions that must be fulfilled before a court will grant a joinder by intervention?

Answer 28

1. The intervener ought to have been joined in the first place
2. such party is needed for the necessary and effective determination of all the questions involved in the cause.
3. He must also satisfy that his presence is necessary for the adjudication of the matter
4. That the claimant must have a claim against him which the claimant
   desires to pursue and that his interest is identical with that of the defendant.

Question 29

How is alteration of parties by death done?

Answer 29

Generally, when a party dies, the personal action abates, except where the action survives him.
Personal actions includes;
defamation, breach of promise to marry, assault and battery.
Impersonal actions includes recovery of property and possessions breach of contract.
Note that: When it comes to finding on issues of fact and judgment, death will not absolve the deceased
MOTION EX PARTE+A+WA

Question 30

What happens when a person becomes bankrupt?

Answer 30

An application can be made by MOTION EX PARTE for his trustee to take over(where the action relates to the property of the bankrupt person)

Question 31

What is third party proceedings?

Answer 31

A third party in a suit is defined as one not originally in the suit but subsequently brought in on the instance of the Defendant who has a claim against him for indemnity, contribution or other remedy or relief connected with the Plaintiff’s claim against the Defendant.
It is mostly used in insurance cases

Question 32

What is the aim of third party proceedings?

Answer 32

To prevent multiplicity of suits.
MOTION EX PARTE+AFFIDAVIT+WA
BANK OF IRELAND V UNION BANK OF NIGERIA
Note that the party sought to be joined is not a defendant but a third party because there’s no probity of contract or relationship.

Question 33

When an application for third proceedings is granted, when must the processes in the suit be served on the third party?

Answer 33

In Lagos, 8 days(within jurisdiction) & 30 days outside Lagos
In Abuja, 8 days(within jurisdiction) & 35 days outside Abuja
where there’s default in entering appearance, he shall be bound by any judgement giving.