By Peculiar Angel Okoye
Introduction
In a representative action, there should not be absence or common grievance, a representative action is in order if the relief sought is in its nature beneficial to all whom the named plaintiffs claim to represent, it is a matter of convenience to avoid multiplicity of actions and prevent voluminous processes that would be filed. There must be a judgment given; that judgment given in the matter binds the entire group represented and not just the persons named in the originating processes.[1]
However, the court has made a deviation or more considered to be a u-turn from the old provisions where it stated that failure to seek leave to sue in a representative capacity or authorization did not and in fact will not vitiate the action, and the objection of the appellant was dismissed alongside the entire appeal.[2]
What is a Representative Action?
This is a type of action where there are numerous persons having the same interest in one matter, one or more of such persons may sue or be sued to defend the matter on behalf of others. This is for the convenience of the court. The Federal Capital Territory, Abuja Rules[3] provides “where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.” Leave of court to sue in a representative capacity have been dispensed with by the Rules of Court.
Per ESO, J.S.C[4] where he stated that “it has to be noted that a named party in a representative action is dominus litis. It is for this reason that care is always taken in choosing the representative. The named party, dominus litis as he is, remains so until judgement and in that case, he could discontinue, compromise, submit to dismissal just as he pleases. But where several people sue, they have powers and if they are not satisfied with the conduct of the representative they may seek an order of the court to add or substitute any other person even though he has not been named in the representative action.”
The affidavit in support in the case of CBN v Adedeji[5] stated the common grievance and common interest of the cross-appellants. The appellant asserted that the suit was incompetent because the cross-appellants did not get the unnamed parties’ authorization to sue in a representative capacity on their behalf and that the cross-appellants did not seek and obtain leave of the trial court to commence the suit as a representative action. The cross-appellants stated in their further counter affidavit that majority of the rationalised employees of the appellant appointed them to represent them in the suit. A letter signed by some of the appellant’s former employees authorising the cross-appellants to institute the action for themselves and on behalf of all those affected.
What are the Conditions for Representative Action?
The court stipulated the condition precedent in Ayinde v Akanji [6] for representative action which are
- There must be numerous persons interested in the case.
- All those interested in the suit must have the same interest.
- The proposed representative must be one of them
- The relief sought must be in its nature beneficial to all the persons being represented.
Their interest must be the same, it must not be inconsistent with each other; this is what is called common interest or common grievance,
The Supreme Court[7] held that a plaintiff in a representative capacity must show that he has an interest in the title and must state how the interest arose.
What Authorization is needed?
The court held that the authority to represent a group is usually given by the said group in a representative action, the court merely approves the authority already given. The court further held that there ought to be on record some evidence of the authorisation of the capacity in question.[8] There must also be an authorisation of some kind by either an agreement, a minute in a meeting, a power of attorney to be revoked after the suit which is after judgment is given. This authorization would then be made an Exhibit to the Application before the court.
Failure to seek Leave?
Every member of the class represented by the main plaintiff is equally a party to the action though unnamed. Where a representative order would have been granted had it been asked for, failure to seek and obtain it will not vitiate the action. It is not compulsory to get an order of court before filing the suit.[9] The Supreme Court held that the issue whether a suit or action was properly and competently commenced in a representative capacity is determined from the pleadings and evidence eventually placed before a court. The Supreme Court further held that courts have moved from technicalities in favour of substantial justice. Failure to obtain leave to sue in a representative capacity would not be sufficient to defeat the claim so long as the pleadings disclose an intention to sue in that capacity.[10]Therefore, the action would be competent notwithstanding the leave of court was not sought and obtained. This application process is by Motion Ex-parte accompanied by an Affidavit.
Where a plaintiff institutes an action in a representative capacity, leave of court to sue in a representative capacity is superfluous. Thus, failure to obtain leave of court is not fatal as to vitiate the proceedings. The court cannot therefore strike out or dismiss an action just because the plaintiff did not obtain the leave of the court to sue in a representative capacity as this will defeat the justice of the case.[11] Niki Tobi JSC[12] stated on whether failure to obtain leave of court in a representative capacity is fatal to the validity of an action. Failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action. It is not in every representative action that express authority of the persons should be obtained. A representative action could be implied from the circumstances surrounding the action.
Who are the named or unnamed parties?
It is not only the named plaintiff in a representative action who are the parties to the action. Those not named but whom the plaintiff or defendant purports to represent are also parties to the action. They are parties because they are also bound by the outcome of the litigation.[13] The Court of Appeal held unanimously dismissing the appeal on principles governing action in a representative capacity stating that the rule providing for representative action is on two-prong principles where the first of them, is founded on the public policy to the effect that it is in the interest of the community that there must be an end to litigation; representative action is an economical way of attaining this goal. While the other principle is that the persons represented must recognize the bindingness of the decision against or for them and that subsequently they must be estopped from denying the bindingness of the decision.[14]
The Supreme Court[15] held where an action is instituted in a representative capacity and or against persons in a representative capacity, such an action is not only by or against the named parties but are also by and against those the named parties represent who are not stated in the originating process.
What is the Old Position of Action in a Representative Capacity?
The Old Rules[16] provided that where more persons than one have the same interest in one suit, one or more of them may “with the approval of the court” be authorised by the other person interested to sue or defend the suit on behalf of all parties. This portrays that the old rules mandated that in a representative action there must be approval of the court, so the precondition for a representative action in the old rules is approval of the court which is the leave of court being first sought and obtained. Per Katsina-Alu JSC stated “a representative is a person authorised to act or speak for another or for others. There must be some kind of authorisation given by the persons to be represented and there must be obtained the leave of court.
Conclusion
Representative action has some essential requirement and condition precedents as previously stated. The essential requirements which a party who desires to sue in a representative capacity must fulfil which is the fact that numerous persons being interested in the case; and for those interested persons to have or share the same interest and all of these persons must have the same grievance and the proposed representative must be one of them and their relief sought from the court must be in its nature beneficial to all persons being represented.[17] Where there are numerous persons having the same interest in one suit and they seek to defend the action, the court may allow one or more such persons to defend the action on behalf of or for the benefit of all persons so interested.
Peculiar Okoye, is an Associate at Chinedu G. Udora & Co.
[1] Atanda v Olanrewaju (1988) 4 NWLR (pt. 89) 394
[2] Central Bank of Nigeria v Adedeji (2022) 13 NWLR (pt. 1847) 375
[3] Order 13 Rule 14 of the High Court of the Federal capital Territory, Abuja Rules 2018.
[4] Okonji & Ors v Njokanma & Ors (1989) LPELR-2478 (SC) (Pp. 8 paras. D)
[5] Ibid
[6] (1988) 1 NWLR (pt. 68) 70
[7] Prince Duro Aderemi Ladejobi v Otunba Ainoji Afolorunsaho Oguntayo (2004) LLJR-SC
[8] Atanda’s case, supra
[9] Lawal v Attorney-General of Kwara State (2010) LPELR-4425
[10]Shell Petroleum Development Company of Nigeria Limited v Oruambo (2023) 1 NWLR (pt. 1866) 433
[11]Mozie v Mbamalu (2006) 15 NWLR (pt. 1003) 406
[12] Shell Petroleum Development Company of Nigeria Limited v Edamkue (2009) 14 NWLR (pt. 1160) 200
[13] Mbanefo v Molokwu (2014) 6 NWLR (pt 1403) 382
[14] Alikor v Ogwo (2010) 5 NWLR (pt. 1187) 281
[15] Olufeagba v Abdul-Raheem, (2009) 18 NWLR (pt 1173) 384
[16] Order 10 Rule 8 of the High Court (Civil Procedure) Rules of the Federal Capital Territory, Abuja 2004
[17] Otapo v Sunmonu (1987) 2 NWLR ( pt. 58) 587