Is The Decision Of The Court Of Appeal In Nduka V. Ezenwaku [2001] 6 NWLR (Pt. 709) 494?

By O.L. Udemezue Esq.

There has been a raging debate regarding the validity of a representative action taken out on behalf of a family or community simpliciter without adding ‘members of’. The one side of the divide holds that if a suit is taken out on behalf of a family or community, the suit is dead on arrival, and nothing can be done to remedy the situation. The other side argues that a suit filed on behalf of a family or community is competent on some grounds. This articles journeys into the authorities of the appellate courts to determine the correct position of the law on this controversy.

The nature of a representative action is such that given a common interest and a common grievance, a representative suit is appropriate if the relief sought by its nature is beneficial to all the persons sought to be represented. Oseni & Ors v. Dawodu & Ors (1994) 2795 (SC); Amale Akure & Ors v. Yaro Bakiwuya & Anor (2022) LPELR-58647(CA); Femene & Ors v. FRN & Anor 2024. Various States High Court Rules in Nigeria have enacted provisions which are to the effect that, where more persons than one have the same interest in one suit, one or more such persons may sue or to defend in such suit for the benefit of or on behalf of all parties so interested.

The underlying jurisprudential postulate entrenched in a representative suit is that, the person or persons suing in a representative capacity must have the same interest in the proceedings. The implication of the above is that parties on record and those they represent must have common interest. See the case of Adeleke v. Anike (2006) 16 NWLR (PT. 1004) 162. Thus, the subject matter must evince a common interest as opposed to diverse interests, common grievance and reliefs sought must in their nature, be beneficial to all the representatives and those represented. See Adediran & Anor v. Interland Transport Ltd (1991) 9 NWLR (214) 155; (1991) LPELR88; Elijah Idise & Ors v. Williams International Ltd (1995) 1 NWLR (PT. 370) 142; (1995) SCNJ 120; (1995) LPELR-1424.

In Chief Ugbor Ofia & Ors v. Chief Isaiah Mba Ejem & Ors (2006) LPELR-2266 (SC), Onnoghen, CJN (as he then was) at page 13, paras. B-E in the case of; outlined the requirements for suing in a representative capacity as follows:

“…this Court listed the essential requirements for people who desire to sue in representative capacity to include the following: (1) there must be numerous persons interested in the case or the side to be represented. (2) All those interested must have the same interest in the Suit, that is their interest must be joint and several. (3) All of them must have the same grievance. (4) The proposed representative must be one of them and (5) The relief sought must be in its nature beneficial to all persons being represented”

Legal Capacity in representative Actions

Now, it is settled law that, it is only a person or body of persons imbued by law with legal capacity that can sue or be sued. In other words, it is only persons, natural or artificial, that can sue and/or be sued. In the case of Iyke Medical Merchandise v.

Pfizer Inc. & Anor (2001) 10 NWLR (pt.722) 540, Iguh, JSC said:

“There is no doubt that as a general rule, only juristic persons have the inherent right and/or power to sue and be sued; in their names. Non-legal persons or entities, again as a general proposition of law, may neither sue or be sued except, of course, where such right to sue or be sued is created and/or vested by or under a Statute. Juristic persons who may sue or be sued eo nomine have been recognized to include: (1) Natural persons, that is to say, human beings (ii) Companies Incorporated under the Companies Act; (iii) Corporations Aggregate and Corporations Sole with Perpetual succession; (iv) Certain unincorporated Associations granted the status of legal personae by law such as:- (a) Registered Trade Unions; (b) Partnerships and (c) Friendly Societies or Sole Proprietorships…”

It is not difficult to recognize who a natural person is. It is when it comes to artificial persons that the difficulty may arise. In law generally, an artificial person may be regarded as a corporation; and a corporation may be defined as a body of persons which the law regards as having a personality of its own, distinct from the separate personalities of its members that constitute the body or artificial personality. However, there are many associations and bodies of persons that are not corporations. Some of these bodies are registered friendly societies, and other quasi

– corporations. See Abubakar & Ors v. Yar’adua & Ors (2008) 19 NWLR (pt.1120) 1; Carlen (Nig.) Ltd v. University Of Jos & Anor (1994) NWLR (pt,323) 631 and Reg’d Trustees. Airline Operations Of Nigeria v. Nigerian Airspace Management Agency (2014) 8 NWLR (pt.1408) 1.

The view that an action filed on behalf of a family is incompetent.

Those that hold this view usually rely on the authorities of Nduka v. Ezenwaku (2001) 6 NWLR (pt,709) 494; Iddo Local Govt Council v. Agura (2018) LPELR46055(CA) and Nigerian Agip Oil Co. Ltd v. Ogbu (2017) LPELR-45217(CA). A review of these cases is to be undertaken hereinafter.

In Nduka v. Ezenwaku (2001) 6 NWLR (pt,709) 494, the two named Plaintiffs; to wit: E. O. Ezenwaku and K. C. Ezenwaku, had instituted the suit “For themselves and on behalf of Ezenwaku family of Udi”. At the address stage, learned counsel for the Plaintiffs attempted to amend the name of the Plaintiffs by prefixing “Ezenwaku family of Udi” with “members of” so as to read “members of Ezenwaku family of Udi”. On appeal, the issue to be determined which is relevant to this appeal, boiled down on whether the suit was properly constituted. It was argued by learned counsel for the Appellants in that case, that “Ezenwaku Family” is not a person at law, it not being either a natural person nor a corporation sole or aggregate; and therefore, could not be represented in a representative action.

The Court of Appeal at page 512 paragraph D per Fabiyi, JCA (as he then was) held at follows:

“Undoubtedly, “Ezenwaku family” is not a person at law. It is neither a natural person nor a corporation sole or aggregate that can sue or be sued. Not being a juristic person, it cannot be represented in an action. It is clear that on this score, the suit was not properly constituted and must be struck out.”

In Iddo Local Government Council v. Agura (2018) LPELR – 46055 (CA), the respondents as plaintiffs sued for ‘themselves and on behalf of Agura family’. Appellants counsel contended that Agura family is not a juristic person that may sue and be sued. It is reflected on the Writ of summons that the suit was initiated by three Plaintiffs namely: Chief Osungbade Arogundade Agura, Mr. Mustapha Oladipo Ogunleye Agura and Alhaji Ladokun Agura (for themselves and on behalf of Agura family). The Respondents who were the Plaintiffs contended that the disputed land is family land and belong to the Agura family which they are members of. The Court of Appeal held as follows regarding the capacity of the plaintiffs and competence of the action:

‘The plaintiffs are the accredited representatives of Agura family of Apero’s compound Oja-Oba Ibadan and they instituted this action on behalf of themselves and the entire members of the Agura Family.” The Supreme Court in the case of IGHEDO V. P.H.C.N. (2018) 9 NWLR (Pt. 1623) PG. 51 AT 66, PARAGRAPHS E – H, described the rule on representative actions as a rule of convenience which should not be treated as rigid but a flexible tool of convenience in the administration of justice. In the case of S.D.P.C.N LTD V. EDAMKUE (2009) 14 NWLR (PT. 1160) PG. 1 AT 26 PARAGRAPH, Ogbuagu JSC held that a person has the right to protect his family interest in a property or title and can sue for himself and on behalf of his family in a representative capacity. In the case of YUSUF VS. AKINDIPE (2000) 8 NWLR (PT.669) PG. 376, where the 1st set of Respondents were alleged to be nonjuristic entities, the Supreme Court held that persons who were their representatives could sue for and on their behalf. The Court further held it is enough if the group or class of persons sought to be represented are easily identifiable and have a common purpose. It follows therefore that the Agura family cannot be isolated from the persons that represent and make up the family. It is clear from the processes filed by parties at the lower Court that the Agura family is easily recognizable. The Appellants did not challenge the plaintiffs at the lower Court. It is settled law that the challenge of the Respondents to sue in a representative capacity for themselves and on behalf of their family is not the business of the Appellant who is not a member of their family. See ELF PETROLEUM (NIG.) LTD. VS. UMAH (2018) 10 NWLR (PT. 1628) 428 AT 453’.

From the above holding from the leading judgment of Ojo JCA, it is clear that the Court of Appeal in Iddo Case supra refused to follow the decision in Nduka v. Ezenwaku. However in the same Iddo Case, Tsammani JCA (as he than was), in his contribution opined that:

….. “a family” being an unregistered corporation cannot sue or be sued in its name. It can only sue or be sued through its recognized representatives. See Nwankwo Ors v. Nwafor & Anor (2014) LPELR 24116 (CA ). On that score, I am of the view that “AGURA FAMILY” not being an incorporated body, could neither sue nor be sued in that name and therefore could not be represented in that name without adding the phrase “members Of…” To that end, the action instituted in the trial Court in that capacity is therefore incompetent and liable to be struck out. The decision of Nduka v. Ezenwaku (supra) is binding on this Court and I have not seen any reason why we should depart from that case.

His Lordship Tsammani JCA then went on to conclude that:

I however note that, the defect is not one which had the effect of voiding or nullifying the suit instituted in the Court below. It was a defect which could be cured by an amendment. The objection to the defect not having been raised timeously at the Court below, is in my view, deemed to have been waived. The Appellant allowed the matter to be heard on the merit despite the defect before raising the issue now on appeal. Such a defect in my view should not be allowed to defeat a judgment arrived at on the merit.

The last case on this point is Nigerian Agip Oil Co. Ltd v. Ogbu (2017) LPELR45217(CA). In that case, Mr. Friday Ogbu (later substituted with Mr. Onyemaechi Ogbu) sued for himself and as representing the Ogbu family of Obrikom in the Ogba/Egbema/Ndoni L.G.A Rivers State. The Court of Appeal held that:

‘… on whether the Plaintiffs/Respondents were juristic or legal persons, I am of the view that whilst Chief Friday Ogbu, suing for himself, is a competent Plaintiff, but to have expressed the Writ as being taken for himself and on behalf of the Ogbu family renders the representative suit incompetent; as the Ogbu family is not a legal person and can neither sue nor be represented as purportedly done. The Bank of Baroda V. Iyalabani and Fawehinmi V. NBA (No. 2) cases (supra) are cases in point. The Plaintiff – Sunday Ogbu could only sue for himself “Sole”. This he did not do. The other option would have been a suit for himself and for and on behalf of members of the Ogbu family, as it is the members that are identifiable and natural persons, but the Ogbu family as a unit is not and has not been shown to be a corporation sole or aggregate under the law’

From the foregoing exposition, it is clear that the argument that a suit cannot be completely brought in the name of a family without adding ‘members of’ has support from decided authorities.

A representative suit brought in the name of a family is not incompetent – The other side of the coin

As stated earlier, there are arguments to the effect that a representative suit brought in the name of a family is competent. There are two sides to this position yet again. One holds that a representative suit brought in the name of a family is competent as a family constitutes of members. The requirement of adding ‘members of’ is mere surplusage. This is because a family can only be defined in terms of members. This also applies to community. Thus, the Tsammani JCA in Iddo’s case supra, defined family as:

..a group consisting of parents, and their children, including all those who are nearly connected by blood or affinity. In other words, a family consists of individual members who claim descent from a common ancestor. See Okulate & Ors v. Awosanya & Ors (2000) 2 NWLR (pt.646) 530; Oloba v. Akereja (1988) 7 SCNJ (pt.1) 56 and MTN Nigeria Communications Ltd v. Emegano (2016) LPELR – 41090 (CA).

The Supreme Court, per ADIO ,J.S.C, in Idesoh & Anor v. Ordia & Ors (1997) LPELR1421(SC) (Pp. 15 paras. F-F) defined family as ‘… a body consisting of the members of the family and it is a legal entity which is separate and distinct from each member of the family.’ From these definitions, it is clear that the distinction between for instance ‘Okeke Family’ and ‘members of Okeke Family’ is a distinction without a difference. It is a different ball game if the plaintiff brings the action on behalf of entities which cannot be defined in terms of human beings or body of persons eg Street, Compound etc. Thus in the case of Ojo & Anor V. Akinyemi (2013) LPELR22139(CA), the Respondent initiated his action at the lower Court for himself and on behalf of Ilaro Street, Esun-Ekiti. The Court held that ‘Ilaro Street is definitely not a body of persons and are therefore non-juristic persons’ and that ‘It would have been a different consideration if the Respondent had sued for himself and Ilaro Community, Esun Ekiti’. It is clear from the reasoning of the Court in this case that one can sue on behalf of community which constitutes of a body of persons can be sued on behalf of unlike street which must not have human persons as its constituents.

Representative action brought on behalf of ‘a family’ is not rendered incompetent once there are juristic persons who sue for themselves and on behalf of the family.

The midway position in this raging arguments is that action brought on behalf of ‘a family’ is not rendered incompetent once there are juristic persons who sue for themselves and on behalf of the family. This position is inline with the decision of the appellate courts that a suit cannot be defeated because of misjoinder cannot defeat a cause of action: See the recent cases of Oriare v. Government of Western Nigeria (1971) All NLR 139, Osunrinde v. Ajamogun (1992) 6 NWLR (Pt 246) 156 at 183-184, Cross River State Newspapers Corporation v. Oni (1995) 1 NWLR (Pt 371) 270, Bello v. Independent National Electoral Commission (2010) 8 NWLR (Pt 1196) 342 , Williams v. Williams (2018) 13 NWLR (Pt 1637) 467

The first authority wherein this position was held is the case of Ojo & Anor v. Akinyemi (2013) LPELR-22139. This is the same case wherein the plaintiff sued on behalf of himself and ‘Ilaro Street’. The Court of Appeal per Galinje JCA (as he then was) held that :

“…where a juristic person sues in a representative capacity, he being a party to the case can sustain the suit, as the only option open to the Court where a non-juristic person is named as a party to a suit would be to strike out the name of the non-juristic person. See: IDANRE LOCAL GOVERNMENT v. GOVERNOR OF ONDO STATE (2010) 14 NWLR (Pt. 1214) 509 at 525-526 PARAGRAPHS H-A. By suing in a representative capacity, a party suing has clearly joined the persons on behalf of whom he is suing as co-plaintiffs to the action.

The law is settled that where improper parties are struck out and there are still living parties on both sides, the suit is not rendered incompetent thereby as the living or juristic persons left are capable of sustaining the action. See: GENERAL ELECTRIC CO. v. AKANDE (2010) 18 NWLR (Pt. 1225) 596 at 616 PARAGRAPH F – G . It is therefore my considered view that even if Ilaro Street, Esun-Ekiti is struck out from the suit, the Respondent being a party to the suit at the lower Court has every right to be heard, and the learned trial Judge was right when he heard and determined the case at the lower Court.

Another case in point is Akerele & Anor v. Oni & ors (2018) LPELR-46700(CA). in that case, the action was brought and defended as follows:

Between

AJAYI AKERELE
CHIEF OLASEINDE OLADUMIYE
APPELLANT(S)

(For themselves and on behalf of Falemu Familoye Akure)

And

CHIEF ONI
DAVID OMOLADE AFE
CHIEF DARE ADEGOROYE
RESPONDENT(S)

MADAM HANNAH AJAYI ADEGOROYE
(For themselves and on behalf of Abusoro Community of Akure North)

It was contended that the ‘Abusoro Community of Akure North is a non juristic person and cannot authorise the respondents juridical persons’ to institute an action on its behalf. The Court of Appeal per DANJUMA ,J.C.A stated the law as follows:

“A family, whatever its name or name given to it, I agree with the learned Counsel for the Respondent simply means all persons or group of persons who share common ancestry and blood relationship in a community. However, the Umu-Udie family does not have to be juristic before the members who make it up or constitute it to acquire the name and who are natural persons, can institute an action in the name and for and on behalf of their collective group, name; the family; the family being a group of individuals who have joint interests in the cause of the action against the Appellant, any one or more of the members can, with the authority or consent of the others, sue for and on behalf of all of them. See Ifekwe V. Madu (supra), in the case of Atakulu V. NBC Plc (supra) it was held that “where several persons are jointly interested in the same claim, one or any number of them may within the authorisation of the others sue for and on behalf of all of them. And it is the person invoking the jurisdiction of the Court that must be a juristic person, not the party being represented.” Furthermore, the Supreme Court in the case of Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 135 had stated that; “A person has the right to protect his family interest in a property or title and can sue for himself and on behalf of the family in a representative capacity — The respondent’ Suit was initiated or commenced by them as individuals and then as representatives of the other members of the family, in addition. With or without the representation of the other members of the family, the Respondents’ Suit was properly constituted for the Federal High Court to be vested with the requisite jurisdiction to entertain it.” See also Amah v. Nwankwo (2008) All FWLR (Pt. 411) 879 @ 899 – 900 G – A, per Rhodes Vivour so long as there are juristic persons suing in a representative capacity, the action would be sustained and cannot be defeated. In Ojo v. Akinyemi (2013) LPELR 22139 CA, the Court held thus: “A representative action seen and considered as an action brought by the body of persons represented rather than the named Plaintiff only. See Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 135 — where a juristic person sues in a representative capacity, he being a party in the case can sustain the suit, as the only option open to the Court where a non-juristic person is named as a party to a suit would be to strike out the name of the non juristic person. (emphasis added)

Finally, in Ajie & Ors v. SPDC (2022) LPELR-56708(CA), it was contended that the action which was instituted by the appellants in their family name which is not a juristic person is incompetent. The case of Nduka v. Ezenwaku was cited in support of the contention. The Court of Appeal per Elechi JCA resolved the issue as follows: “In the case of Nduka v. Ezenwaku [2001] 6 NWLR (Pt. 709) 494 at 517(per Olagunju, J. C. A.), the Court stated that the decisive factor in any challenge of an action being instituted in a representative capacity is the element of flexibility that failure of a plaintiff to sustain an action in representative capacity does not render the action incompetent per se as the Court is not precluded from rendering judgment on individual or personal basis rather than a group basis if that course is dictated by the evidence that emerged at the conclusion of the trial. See also Nta v. Anigbo (1972) 5 SC 156; Onyemuze v. Okoli (No. 3) , (1974) 4 ECSLR 98 and Amos v. Shell B. P. Petroleum Development Company of Nigeria Ltd. (1974) 4 ECSLR 486 . It is also important to note that the appellants sued in their personal capacities, even while also claiming to represent a non-juristic family name. The appellants can stand on their own right as plaintiffs in the suit, even if the named family is held not to be a juristic personality. It is my view that there was sufficient interest in the named plaintiffs (now appellants) before the lower Court to justify the holding that proper parties were before the lower Court. The point raised and argued by the respondent is without merit and is hereby discountenanced. (emphasis supplied)

From the foregoing exposition, it can be seen that the decision of the Court of Appeal in Nduka v. Ezenwaku has now been indirectly overruled by that Court. This much is discernible from the judgment of Ogbuinya JCA (as he then was) in Nigeria Agip Oil Co. Ltd v. Ogbu supra wherein his Lordship undertook a historical excursion into the decisions of the Court since Nduka v. Ezenwaku as follows:

“One of the appellant’s chief grievances is that “Ogbu family”, without the prefix “members of” is not a juristic person/entity to be represented in the action. It erected and weaved its argument on Nduka v. Ezenwaku (supra) where this Court declared the action incompetent because “members of” did not precede “Ezenwaku family”. Unarguably, this Court is bound by its previous decision, see Aladinma Medicare Ltd. v. Regd. Trustees, O.C. M. (2012) 5 NWLR (pt.1294) 441.

Nevertheless, this Court in Chief Olanitoro Aruwaju v. Chief Ashojo Olotu Ashara (unreported) Appeal No. CA/AK/158/2012, delivered on 4th April, 2014, and Mr. Jimoh Olaoye v. Jide Makanjuola (unreported) Appeal No. CA/AK/158/2013, delivered on 22nd June, 2017, declared a similar omission of “members of” before a family name, as a procedural irregularity. In other words, the Ashara and Olaoye cases do not agree with Ezenwaku case , all decided by this Court, on this point. To this end, I will deploy one hallowed principle of law to resolve the judicial impasse. It is trite law, that where two decisions of a Court are irreconcilable on a particular point, a Court should take the one that is later in time, see Osakue v. FCE Asaba (2010) 10 NWLR (Pt.1201) 1. I have situated the chronological judicial ages of the two sets of decisions. Ezenwaku case was delivered in 2001 whilst Ashara and Olaoye cases were handed down in 2014 and 2017 respectively.

It flows, that the decisions in Ashara and Olaoye cases are later in time. I will, in due obeisance to the command of the law, adopt and kowtow to the later decisions.

In this wise, based on the authority of the two later cases. I declare the respondent’s failure to factor “members of” before “Ogbu family” as a mere irregularity which is important to ruin the action. Besides, in In re: Adeosun (2001) 8 NWLR (pt.714) 299 at 221, Iguh, JSC, opined. In the same vein, where a plaintiff did not expressly sue in a representative capacity and there had been evidence to show he was so suing, the law in such case is that the Court should aim at doing substantial justice and save multiplicity of suits by amending the capacity in which the suit is brought so as to bring it in line with the evidence. It would not matter whether or not an application for such an amendment, had been applied and obtained. See Mba Nta & Ors. v. Eded Anigbo & Anr. (1973) 5 SC 156 at 174 – 176; Afolabi & Ord. v. Adekunle & Anor. (1983) 2 SCNLR 141; Ayeni v. Sowemimo (1982) 2 SC 60 etc

It can be gleaned from this magisterial pronouncement, in an ex cathedra authority, that want of expression of a representative capacity will not vitiate an action once evidence so discloses it. This obviously deflates and demolished the appellant’s submission on the knotty point’ (emphasis supplied)

In conclusion, based on the authorities reviewed, it is our humble opinion that the correct position is that non addition of ‘members of’ when a case is instituted on behalf of a family does not render same incompetent. The position held by the Court of Appeal in Nduka v. Ezewaku has since been abandoned by the Court in latter decisions. This position holds true even in the case of Iddo Local Government Council v. Agura supra which some lawyers erroneously rely on as upholding Nduka v. Ezenwaku. It should be noted that in Iddo Local Government Council v. Agura, the leading judgment of Ojo JCA departed from the said decision in Nduka v. Ezenwaku. It is only in the concurring judgment of Tsammani JCA (as he then was) that he held that the Court is bound by its judgment in Nduka v. Ezenwaku. The law, however, is that the judgment of the court is embodied in the leading judgment. Again, though the judgment in Nigerian Agip Oil Co. Ltd v. Ogbu (2017) LPELR-45217(CA) upheld the decision in Nduka v. Ezenwaku, Danjuma JCA who read the leading in Nigerian Agip Oil Co. Ltd v. Ogbu abandoned same in the latter case of Akerele & Anor v. Oni & ors (2018) LPELR-46700(CA). The Court in Ajie & Ors v. SPDC (2022) LPELR-56708(CA) referred to the case of Nduka v. Ezenwaku but refused to follow same.

It is recommended that the Court of Appeal in the earliest possible time, the opportunity presents itself, should expressly overrule the decision in Nduka v. Ezenwaku and restate the position of the law regarding institution of actions in the names of families and communities. This is because the Supreme Court has always handled the matter of representative action and misjoinder with a lot of flexibility and flowing this flexibility, it is difficult to see the Court dismiss an action instituted on behalf of a family for the mere reason that the name of the family was not prefixed with the words ‘members of’.

O.L. Udemezue Esq. is a private legal practitioner based in Awka, Anambra State. He can be reached at [email protected]