Parties in Civil Litigation

When a matter is brought before a court, it is brought by Legal Persons (Whether real or artificial). Personhood is governed by law and largely along the following parameters.

Age: It’s not like an infant is not a person but he or she cannot stand alone before the court. So the infant can sue or be sued but he has to do so through another person called his Guardian or Next friend (depending on jurisdiction)*

Mental Capacity: Persons of unsound mind also fall under this category of disability, they sue through their guardian of committee and their names are written in the same manner as that of infants. **

Incorporation: Because companies and institutions can be recognised under the law, if they must be before the court, they must show up in the recognised legal name. So if your company wants to sue, assuming you are registered, it will be You Nig Limited v. Whoever. If you are not registered it means the entity of your company has not been legally created so it will be silly to go by the above name. The best option is to put your name then in bracket (Trading under the Name and style of whatever name you go by). This is the same reason why Business names*** do not stand alone in a suit. The proprietor (owner of the business name) is the one appearing while the business name is put in bracket as done above. This is because while part B CAMA gives priority to proprietors regarding the name, it does not give legal personality.

Capacity: If the personal representative of a dead person, (having the legal right to act in that capacity)^ wants to bring an action on behalf of the person’s estate, they are not acting for themselves but are acting in a special capacity. So they cannot put the dead guy’s name, they cannot put the family members’ name. They put their names and in bracket (Suing as the executor/administrator of the Estate of Dead Fella, deceased)

Same for a liquidator, they do not own the property of the person they are liquidating (lolz) and the person is still very much around; so the person’s name appears and in bracket (a company under liquidation, suing by It’s liquidator, Mr Liquid)

Also let’s say you are in a group/club/society/family or whatever and that association is not registered under CAMA part C. If there’s a court case and some of you have to step up to the plate, whose name do we put now? Well, your name(s) appear, and in bracket: suing for themselves and on behalf of members of the Ballers Club. If the society was registered for example in Part C CAMA, then the society can stand alone viz; The Incorporated Trustees^^ of the Ballers Club

Joinder and Mis-Joinder,  co.

If for instance if you have an issue with the driver of a school bus while he is carrying out his official duties, when suing you ought to join the school (because of vicarious liability). The orders of a court are binding on the parties to the suit alone (except in rem actions a.k.a those actions that affect the whole world and all that) So you can’t sue only the driver  and walk up to the school saying the court said I am entitiled to 10 million so you people should find that money for me. Likewise, you cannot join the company that makes the car, that’s too far. (Even if anybody is doing that, it will be the defendants)

So let’s say you forgot to add someone or you suddenly find yourself served with a process whose facts have nothing to do with you. You will have to add the person or apply to be removed.

For joinder, you have to show that the party you want to join really has interest in common with you guys i.e. he is not just a famzer. Amachree v. Newington. We are not talking similar, we are talking breach/right/interest arising from the same sets of facts. For instance if the bus driver above hit your car as well as 2 other fellows, those ones will not be out of place if they are joined. It is applied for by MOTION ON NOTICE SUPPORTED BY AFFIDAVIT AND WRITTEN ADDRESS  (We treat motions in subsequent posts)

Or 10 r 1(2) Abuja lists some instances where joinder of plaintiffs would be refused, Lagos rules are silent on it but generally an application for joinder will be refused:

  • Where it is intended to embarass any party
  • Where it would cause undue delay
  • Where one of the co-claimants is likely to have a counter-claim against him/her (You can’t join the fight if your own fight with the opponent is more complicated or deeper)

You can ask for joinder at any time even on appeal.

This is how the heading of the motion is:

[COURT HEADING please write in full depepnding on the scenario given]

CASE NO:

BETWEEN

You……………………………………………………..CLAIMANT/APPLICANT

AND

Oga Driver……………………………………………. DEFENDANT/RESPONDENT

Jam Jam International School……………………. PARTY SOUGHT TO BE JOINED

What if you are confused and don’t know who exactly you can get your reliefs from. Like a lot of people were involved. You can  sue every suspect, then leave it to the court to decide who is the right person (the court will give a BULLOCK ORDER used in Bullock v. London Omnibus Co). But it doesn’t come free, you have to compensate the innocent ones for wasting their time and the money they must have spent in defending themselves.

Joinder by intervention: Same thing as joinder but it’s just that the person who wants to be joined is the one applying for it. This is more like the person comes by his own self to be joined because he was not originally a party. Same motion heading as above and same application method.

Mis-joinder: This right here is some over-syllabus activity. You join/sue someone who has no business being joined/sued. When you come to your senses or the party themselves realise hey what am I doing here you or the person can apply that they be removed.Same application method but the party removed is ‘party sough to be removed’.

Consequences of not joining or misjoining: It is not fatal to any body. If you find yourself party to a proceeding you are bound by the provisions not matter how innocent you are. If you dont find yourself in a proceedings nobody can hold you to its rulings even if you are the one that started the fight.

Third Party Proceedings: If you buy a phone from me and as part of our deal I promise to pay for the little repairs to make it brand new again. After you repair the phone and the phone repair guy starts asking for his fees. Won’t you come back to me to make good my promise? Exactly. So

Phone Repair guy = Plaintiff / Claimant

You = Defendant

Me = Third Party

This type of thing is common with insurance companies. The third party has no business with the plaintiff/ claimant; just the defendant. The application is brought by Motion EX PARTE supported by affidavit and written address.  The process heading looks like this. There are three given instances wherer third party proceedings are used:

  • The defendant claims that he is entitled to contribution or indemnity from the proposed third party
  • The defendant claims that he is entitled to any relief connected with the original subject matter of the action and substantially the relief claimed by the plaintiff.
  • The issues or questions relating to the subject matter are substantially the same with those arising between the plaintiff and the defendant and should properly be determined between the plaintiff, the defendant and the third party or any of them

[COURT HEADING]

CASE NO:

BETWEEN

Phone Repair Guy……………………………………………………..CLAIMANT

AND

You……………………………………………. DEFENDANT/APPLICANT

AND

Me……………………. THIRD PARTY

Notice that there is a second ‘and’ between th defendant and the third party, this is because like I said earlier the claimant and third party have no business with each other, it is like a triangular relationship with the defendant being the peak of the triangle; the link between the two parties. Another excample: if, for instance you bash somebody’s car and the person takes you to court, you use third party to bring your insurance company in so they can take care of whatever you owe the claimant (your victim).


*In Lagos a child sues and defends by his guardian; in Abuja an infant sues by his next friend and defends by his guardian ad litem

**In Lagos a person of unsound mind sues and defends though his guardian; in Abuja he sues through his committee/ next friend and defends through his committee or guardian ad litem

***Business names are registered in Part B CAMA and what the law does for them is that they are given priority with respect to the name, nobody can just come and use the name anyhow. However there is no legal personality. The company cannot be on its own. A description of the workings of CAMA is a post or 2 ahead.

^The capacity to be a personal representative is governed by law. More on this later under Property Law Practice

^^For any part C Company, this must be there.

C’est fini. Let’s try and get the parties in the scenarios below:

  1. Mrs Funmi wants to recover her money from Mr John in Lagos
  2. Mr Okey, the owner of Okey and Sons Ventures in Alaba, Lagos wants to bring an action against the family of Oniru, for failing to deliver possession of the land he acquired from them for his business. John and Pamela Oniru have been authorised by the family head to defend the action.
  3. During a deliverance session Toyin Kuku, a 13 year old girl, was pushed down and badly injured by the pastor of New Life Global Church, Lagos. Mr Manuel Kuku is not happy about this.
  4. In line with its powers as liquidator of Silverbird Nigeria Ltd, AMCON Ltd wants protect the company’s  title over their office at Asokoro Abuja against the notorious omo oni-iles -(Ajah-One and Tolu) of the Gbera family.
  5. Mrs Sarah Grundy just got the probate letters of her late husband Solomon Grundy. She is acting as executor along with Mr Younan, her husband’s lawyer. They want to recover some goods ordered by Mr Grundy from Dubai from Global Connect Enterprises, a business run by one Mr Chukwunonso Umeakwu.
  6. Yaya is a schizophrenic who is sometimes subject to hallucinations. She was recently defamed to have killed her only child by Daily Moon Magazine, an Abuja-based publication. Her sister Koko who has tended to Yaya since her youth is unhappy about it.

DON’T LOOK

No seriously…

Try and do it first…

Oya Check…

  1. This one is easy peasy!

Mrs Funmi ……………………………..Claimant (Lag) / Plaintiff (Abj)

And

John………………………………………Defendant


2. Notice that Okey and Sons Ventures has no Ltd. This indicates that it is not incorporated.

Mr Okey (Carrying on business under the name and style of Okey and Sons Ventures)… Claimant [because it’s in Lagos]

AND

John Oniru

Pamela Oniru

(Suing for themselves and on behalf of the Oniru Family)………………………..Defendants


3. We have a child here and a church which we can safely assume is registered since they did not state otherwise, so take note of the pattern

Toyin Kuku ……………………………………………….………………… Claimant                                  (An infant, suing through her guardian/Next friend, Manuel Kuku)

AND

The Incorporated Trustees of New Life Global Church…………………..……Defendants


4. Note that the liquidator’s name appears in bracket not as the party

Silverbird Nigeria Limited ………………………………Plaintiff [because it’s in Abuja]             (Suing through its liquidator, AMCON Ltd)

AND

Ajah-One Gbera

Tolu Gbera ……………………………………..……………Defendants                                               (for themselves and on behalf of the Gbera Family)


5.

Sarah Grundy

Mr Younan …………………………………………………..Claimants                                                      (Suing as the executors of the estate of Solomon Grundy, Deceased)

AND

Chukwunonso Umeakwu ………………………….……. Defendant                                        (trading under the name and style of Global Connect Enterprises)


6. We can see from the question that Koko is Yaya’s guardian

Yaya ……………………………………………………………..Plaintiff                                           (Suing through her next friend Koko)

AND

Daily Moon Magazine Ltd…………………………………..Defendant

That’s it for this post. A lot of Corporate Law popped up here, so I’ll be talking about Types of companies next. Please DROP A COMMENT!

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