➥ CASE SUMMARY OF:
P.D.P. V. Godwin IN RE: Application for Ejiofor Apeh & 2 Ors. (SC. 428/2015 · 10 Feb 2017)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Substitution of parties;
Representative action.
➥ CASE FACT/HISTORY
This is a motion on notice brought pursuant to section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Order 2, rule 28(1 and 2) and Order 3, rule 15 of this court’s Rules, 2009 (as amended). The reliefs set out in this motion on notice, are as follows, inter alia: 1. An order granting leave to substitute the names of Ejiofor Apeh, Ude Celestine and Ossai Moses for the names of Barrister Orji Chinenye Godwin, Chief C.C. Akalusi and Chief Orji C. Orji who were the A 1st – 3rd respondents at the lower court with the names of the present applicants.
The applicants were ward delegates elected for Enugu State at the ward congress election for the People’s Democratic Party (PDP) on 1 November 2014. They were among the delegates represented by Barrister Orji Chinenye Godwin, Chief C.C. Akalusi and Chief Orji C. Orji at the Federal High Court and Court of Appeal, Abuja in suit No. FHC/ABJ/ CS/816/2014 and appeal No. CA/A/28/2015 . The court below gave judgment against the said respondent. The applicants herein, and the 1st – 3rd respondents at the court below, have the same interest in the case but the latter (1st 3rd respondents at the court below) are no longer interested in pursuing the appeal on behalf of the ward delegates. The applicants are, however, desirous of further pursuing this appeal in a representative capacity to the Supreme Court and have been authorised by other delegates whose names are contained in exhibit 1 as deposed to in paragraph 14 of the affidavit in support. The applicants earlier sough for leave to substitute the names of the 1st – 3rd respondents with their own names before A this honourable court after the applicants have filed a notice of appeal and a brief of argument in their names. In a considered ruling, delivered on 22 January 2016, the said application for substitution was struck out on the ground that the order for substitution had to be granted first before filing other processes including notice and grounds of appeal.
➥ ISSUE(S)
I. Whether the applicants are entitled to be substituted having regard to the facts before the Supreme Court as disclosed in the depositions of the parties?
➥ RESOLUTION(S) OF ISSUES
[APPLICATION DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[SUBSTITUTION CANNOT BE GRANTED
‘In the application at hand, it is never shown, anywhere, that those who represented the applicants or anyone of them died which would necessitate substitution. Further, none of the names of the representatives of the applicants has got his name legally removed or replaced from the proceedings as in situation and (B) above. I agree with the learned SAN for the 1st set of respondents in his submission that the applicants initiated an application “seeking to remove the named parties representing the delegates and to implant theirs”. The law, rules of court and practice would not permit that. It is settled law that individuals are not allowed to unilaterally alter a case as constituted from the trial court and the names of parties in that character must be maintained except as may otherwise be ordered by a court of law. Our Order 2, rule 8 of this court’s Rules, 1985 (as amended) provides: “Notice of appeal, applications for leave to appeal, briefs and other documents whatsoever in pursuance of the appellate jurisdiction of the court for filing in accordance with the provisions of these rules, shall reflect the same title as that which (sic: are) contained in the court of trial .” (Italics for emphasis ) This was what this court harped on to strike out a similar application filed earlier by the applicants. See P.P.A. v. INEC (2012) 13 NWLR (Pt. 1317) 215.’
‘What I may add, perhaps, is that the reasons put forward by the applicants in reply to exhibit CA2 may appear contrary to the earlier position held out as per their depositions in their affidavit in support that the said set of respondents represented them at the trial court and the court below. Whatever the applicants may say to convince this court that they are not bound by a decision that bound their representatives (2nd set of resp on dent s) wil l certainly run counter to the earlier representation of all the delegates elected from the ward congress in Enugu State, whereat the delegates, including the applicants, stated that they had accepted the decision of the court below on the issues in dispute and as a matter of fact, did not have any reason to proceed further on appeal to this court. I thus, have no reason to disbelieve that the applicants were part of the decision in exhibit CA2. I already referred earlier to paragraph 8 of the applicants supporting affidavit which confirms that the 2nd set of respondents are not interested in pursuing the matter to this. That decision as I said earlier, still binds the applicants and they cannot resile. See Attorney-General, Nasarawa State v. Attorney- General, Plateau State (2012) 10 NWLR (Pt. 1309) 419 at page 450.’
‘Further, the interest of the applicants cannot in any way be higher than the interest of all the delegates (780) elected for the 260 wards in Enugu State (exhibit CA 4). The claim of the applicants is that 113 delegates authorised them to appeal to this court, even if that is correct, majority of the elected delegates for Enugu State (667 of them), still remains bound by the decision taken in exhibit CA2. There is, therefore, no commonality of interest between the applicants and the vast majority (667) of the delegates in pursuit of the application on hand as divergent interest set in between the applicant, the 2nd set of respondents and the majority of the ward delegates. In a substitution, commonality of interest between persons to substitute and those to be substituted is paramount. See Ejiofor Apeh and Ors. v. PDP – SC. 428/2015 of 22 January 2016 .’
Per MARY PETER-ODILI: ‘Indeed, this application has strange facets in that the 2nd set of respondents have not filed a notice of appeal and so there is no valid appeal and as a follow up, no appellant or appellants to be substituted as after the Court of Appeal decision, the 2nd set of respondents rested and at that lower court, the 2nd set of respondents represented others including the applicants herein. The implication therefore is that there is no existing appellant who the applicants can substitute. This brings to memory the matter of not putting something on nothing and expecting it to stand. See Macfoy v. UAC (1962) AC 152. It seems to me that this application is a non-starter having not scaled the fundamental hurdle which is the proper parties before court especially where the applicants intend to carry along unwilling partners.’]
.
.
.
✓ DECISION:
‘There is no foundation for reliefs 3, 4, 5 which are hereby struck out. Reliefs 1 and 2 of leave to substitute 2nd set of respondents (in this application) and for leave to present, maintain and prosecute (this appeal) or, better, an appeal in a representative capacity (on behalf of other unnamed parties on record) have no scintilla of merit. They are hereby dismissed along with the application. In the interest of justice, I shall allow each party to this application to bear its own costs.’
➥ FURTHER DICTA:
⦿ EFFECT OF STRIKING OUT VERSUS DISMISSAL
Thus, as the said motion was not dismissed by this court, I find myself in agreement with the submission of learned counsel for the applicants in his reply brief that the applicants are at liberty to bring the application over and over again. Unfortunately, the law has not set any time limit for presentation or representation of a process ordinarily struck out. For the purpose of a reminder, I think I should restate the well settled principle of the law and permanent feature of the practice of the courts that when action is struck out, it is still alive and could be resuscitated by the plaintiff/appellant. It is not so when a matter is dismissed. The matter comes to a final bus-stop and the particular claim or relief suffers the vicissitude of death and it can hardly be revived. Thus, where a suit/case/ application/appeal has been considered on its merit to finality and found to be worthless, it is subject to a dismissal order. Equally, where a matter is dismissed on ground of abuse of court process, it is subject to be dismissed and it cannot be relisted. Where a matter is withdrawn with the consent of parties , it is to be dismissed and it cannot be relisted. See Jimoh v. Sterw Nig. Ltd (1998) 7 NWLR (Pt. 558) 523; Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6; Jadesimi v. Okotie- Eboh (1986) 1 NWLR (Pt. 1) 264. On the other hand, where a matter is simply struck out for a reason: non-compliance with a provision of law, rule and or practice; where a point of objection is raised (which point can be complied with, thereafter), where a process is technically bad for a reason (which can later be rectified), the originator/initiator of that process is at liberty to refile that process after same has been brought in compliance with the correct position of the law, rule or practice as may thereof be required. — Muhammad JSC.
⦿ CONSEQUENCES OF A REPRESENTATIVE ACTION
It is to be noted again that in a representative action both the named plaintiff and/or defendant, as the case may be, and those they represent are parties to the action. However, the lawpermits only the named representative as plaintiffs or defendants who are the dominus litis (the masters of the suit) to sue or be sued in a representative cap acity until when the suit is determined. And, for the purposes of initiating any process in representative action, such process must be by and in the name of the dominus litis in the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncountermanded. Those represented, such as the applicants in this matter, are deemed bound by whateverdecision the court would give for or against their representatives. See Tesi Opebiyi v. Shittu Oshobojo and Anor. (1976) 9 – 10 SC 195 at page 200; Oketie v. Olughor (1995) 5 SCNJ 217 at 226 ; Atande v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394; Ede v. Nwidenyi, In Re Ugade (1988) 5 NWLR (Pt. 93) 161 at page 169; Ekennia v. Npakara (1997) 5 SCNJ 70 at page 88. To clarify the matter further, any decision given for or against the representative is a decision for or against those other persons, individuals, groups etc, they represent. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. By way of further elucidation, it was held in Pabiekun and Ors. v. Ajayi (1961) 1 All NLR 197, that the members of the group represented are so bound by the outcome of the proceedings that when a court makes an order for a defendant to defend on his family’s behalf and judgment is given against the family, a member of that family who did not join the resolution that the defendant should represent the family cannot say that the judgment does not bind him and claim family property in his possession taken in execution of that judgment. If all the named parties in a representative action die, the action, provided it is still maintainable, subsists on behalf of and/or against those they represent and who have not been mentioned in the proceedings nomine . But such action may not be prosecuted or continued until a living person(s) has been substituted for the named deceased party to carry on the representative action both on trial and also when the matter is on appeal. See Attah and Ors. v. Nnacho and Ors. (1965) NMLR 28 ; Okotie v. Olughor . — Muhammad JSC.
⦿ COUNSEL CONDUCTING A CIVIL CASE IS IN CONTROL
I accept the proposition that the dominus litis is like the counsel in relation to the conduct of the case he has been instructed. Counsel in conducting a civil case is, as a matter of law, practice and civil procedure, in complete control of the case. He is a master of his own house. Whatever his decisions are in relation to the conduct of the proceedings in the action, the decisions are binding on the client. See Elike v. Nwankwoala (1984) 12 SC 301. — Eko JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Tanko Muhammad JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Yusuf Ali.
⦿ FOR THE RESPONDENT(S)
Dr. Ikpeazu SAN,
Chief Olanipekun, SAN,
Mr. Inuwa, for 5th Respondents.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
