EDE V. NWIDENYI & ORS.

• Pages: 406-428

406

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NIGERIAN SUPREME COURT CASES

[1988] 3 N.S.C.C.

viso does not apply. It is to this latter class of cases that the provisions of section

141

of the Evidence Act will apply. The case against the appellant does not fall with-

in that class. So the provisions will not apply to it.

The conclusion I reach therefore is that the Court of Appeal was wrong in ap-

plying the provisions of section 166 subsection 2 and Section 168 of the Customs &

Excise Management Act 1958 and the provisions of Section 141 of the Evidence Act.

In the instant case. In my judgment the trial court was right in discharging and ac-

quitting the appellant for the reasons it gave and that the Court of Appeal was wrong

in setting aside that judgment.

It is for the above reasons and the fuller reasons given in the lead judgment of

my learned brother, Craig, J.S.C. that I allowed the appellant's appeal on 6th Oc-

tober, 1988.

Appeal allowed:

EDE V. NWIDENYI & ORS.

CHRISTOPHER EDE

(representing Amofia

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APPELLANT

Village Eha-Amofu)

V

OGENYI NWIDENYI & 3 ORS.

(representing Amagu

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RESPONDENTS

Village Nkaliha)

IN RE: APPLICATION FOR LEAVE TO APPEAL

AS INTERESTED PERSONS:

1.

OGBUZURU UGADU

2.

OLINYA ODO UKPURUEKE

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APPLICANTS

SUIT NO. SC 12

4

/

1

988

SUPREME COURT OF NIGERIA

OBASEKI,



J.S.C.

KARI BI-WHYTE,



J.S.C.

KAWU,



J.S.C.

OPUTA,



J.S.C.

AGBAJE,



J.S.C.

16th December, 1988

Practice and Procedure - Representative actions - Demise of named plaintiff - Substitution

- Proper procedure.

Appeals - Leave to appeal - Representative actions - Right of appeal as persons interested

- Effect - Distinction from right as unnamed plaintiff

Words and Phrases - Any other person having interest in the matter - Meaning of

ISSUES:

1.

Whether a named plaintiff in a representative action, is the only plaintiff to the

action.

2.

What is the nature of a representative action.

EDE V. NWIDENYI & ORS.

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407

3.

Who is a "person interested" within the meaning of sections 213(5) and 222(a) of

the 1979 Constitution of Nigeria.

4.

What is the difference between an unnamed party to a representative action, and

a "person having an interest in the subject matter of any proceeding, in the

exercise of their rights of appeal.

5.

What options are open to a class of persons represented in an appeal, by a person

deceased, when such appeal has been dismissed for want of prosecution.

FACTS:

The plaintiff, in a representative capacity, instituted an action against the defend-

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ants, claiming a declaration of title to land, damages for trespass and an injunction

to restrain the defendants from further interference with the property. The action

was dismissed on the 7th January 1974, and the plaintiff appealed to the Court of

Appeal, on behalf of the community he was representing. Unknown to the Court of

Appeal, the plaintiff died around Easter in 1983, and the community was not served

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with hearing notice of the appeal. On the 11th March 1986, the Court of Appeal dis-

missed the appeal for want of prosecution. The community did not hear of the dis-

missal of their appeal until over a year later.

On the 20th April, 1987 the community applied to substitute other members for

the deceased plaintiff, to enable them to give notice of appeal against the dismissal

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of the appeal. In November 1987 the Court of Appeal dismissed the application, on

the ground that the appeal having been dismissed, there was no

/is

before it in re-

spect of which the applicants could be substituted. Dissatisfied with this, the plain-

tiffs appealed to the Supreme Court against the judgment of the Court of Appeal.

On the 18th of April 1988, Counsel for the appellants withdrew the appeal and brought

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an application seeking (i) an enlargement of time within which to apply for leave to

appeal from the judgment of the Court of Appeal (ii) leave to appeal as interested

persons and (iii) leave to appeal on mixed law and fact from the said decision of the

Court of Appeal.

HELD:

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1. It is well settled in law, that the approved representative in a representative

action, who is the named party, is not the only party to the action. All the others

who are not named but are represented, are also parties to the action and are

bound by the result.

2.

In a representative action, where someone is suing on behalf of himself and

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others, every person represented though not named on the record is a party to

the action. However, where one sues as a representative plaintiff he is the sole

plaintiff and in

dominus litis

until judgment. Thus in a representative action every

member of the class represented by the named plaintiff is equally a party to the

action though unnamed. If such plaintiff loses in the trial court and appeals to

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the Court of Appeal he appeals for himself and on behalf of all the members of

the group he represents. Each member of such group becomes an unnamed

party, an unnamed appellant, because each and every one of them will be bound

by the eventual decision on appeal. Such unnamed appellants are not merely

"other persons having an interest in the matter." They are parties in and to the

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appeal. Any right of appeal conferred by section 213(5) of the 1979 Constitution

shall be exercisable at the instance of any such party.

3.

An unnamed defendant who is represented in an action by another and any

person even if not a party, who can show that he has a legally recognisable

interest which is prejudicially affected by the decision can apply for leave to

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appeal against the decision

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within the meaning of section 213(5) and 222(a)

of the 1979 Constitution. The application must be brought in the name of the

party interested, whose said interest is prejudicially affected by the decision

sought to be set aside. An application by an unwilling party who has indicated

his intention to discontinue the appeal, is not within the section.