Oil and Gas
| Pages | 687-728 |
Action Para. 1601
OIL AND GAS
(1) ACTION
1601. Can an order granting leave to institute an action in representative
capacity constitute decision of Court which cannot be varied?
“The first question to be resolved in this appeal is whether the learned trial Judge,
Aina J., had the power to grant the prayer in the motion on notice before him in which
the applicants prayed the Court for an order varying the terms of the leave granted to
them by Sanyaolu, J., to institute the consolidated suits in representative capacities
respectively on behalf of Duboro Community and Baen Community.
In resolving this question, it is necessary to take into consideration the fact that
the application was made ex-parte under Order 4 rule 3 of the Federal High Court
(Civil Procedure) Rules. It is also an approval which has to be sought and given
before an action is commenced. The approval order is therefore, in my view in re-
spect of a preliminary requirement prior to the commencement of an action. I there-
fore do not believe that such an order comes within what can constitute a decision of
a Judge which cannot be varied, reversed or altered by another Judge of Co-ordinate
or equal jurisdiction. It is therefore not one envisaged in the dictum of Nasir, P.C.A.
in Fawehinmi v. Att. Gen of Lagos State, (supra) and that by Lewis, J.S.C. in
Ekpere v. Aforije (supra). The view expressed by Udo Udoma in Uku v. Okumagba,
(supra) to the Effect that the learned Trial Judge “acted without jurisdiction in order-
ing the respondent to defend the suit on behalf of Olodi family, having regard to the
fact that the order made by Ovie Whiskey, Ag.J. authorizing the appellants to defend
the same suit on behalf of the Olodi family is still active and subsisting” is also inap-
plicable to the present case. This is because, from the facts of that case, the learned
Judge did not vary or set aside the earlier order made by Ovie-Whiskey, Ag. J.before
making a contradictory order which he made in the same case.
The view I expressed hereof that the learned trial Judge, Aina, J has jurisdic-
tion to grant the prayer in question before him is premised on the provisions of Order
32 of the Federal High Court (Civil Procedure) Rules Which deals with amend-
ment of proceedings. The Rule provides as follows: - “The Court may at any stage of
the proceedings, either of its own motion or on the application of either party, order
any proceeding to be amended, whether the defect or error be that of the party
applying to amend or not; and all such amendments as may be necessary or proper
for purpose of eliminating all statements which may tend to prejudice, embarrass, or
delay the fair trial of the suit, and for the purpose of determining in the existing suit
the real questions or question in controversy between the parties, shall be so made.
Every such order shall be made upon such terms as to costs or otherwise as shall
seem just.” I believe that the earlier order made ex-parte by Sanyaolu, J., formed
part of the proceedings in the case before Aina, J. who later assumed jurisdiction in
the case. He (Aina, J.) therefore has the power to entertain the application to amend
the said earlier order in the proceeding as requested in the motion filed by the plain-
tiffs to that end.” - Per Akintan, J.C.A. in S.P.D.C Ltd. v. Adamkue Suit No. CA/
PH/163/2000; (2003) 11 N.W.L.R. (Pt. 832) 533 at 582-583.
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Para. 1602,1206 Vol. 16: OIL AND GAS 688
1602. Nature of requirement for leave to institute action in representative
capacity.
“Finally, it is necessary to state that the requirement under Order 4 rule 3 of the
Federal High Court (Civil Procedure) Rules that “Where more persons than one
have the same interest in one suit, one or more of such persons may, with the ap-
proval of Court, be authorized by the other persons interested to sue or defend, for
the benefit of or on behalf of all parties so interested” seems not to be mandatory.
This can be inferred from the use of the word “may” in the Rule instead of the word
“shall” where mandatory provision is envisaged. Thus, for example, in Order 4 rule 1
of the same rules which deals with instituting suits on behalf of others, the rule pro-
vides that: “If the plaintiff sues, or any defendant counter-claims, in any representa-
tive capacity, it shall be expressed on the writ and the Court may order any of the
persons represented to be made parties either in lieu of, or in addition to, the previ-
ously existing parties,” (Underlining supplied for emphasis).
The use of the word “shall”, as against the word “may” used in Order 4 rule 3,
makes compliance with Order 4 rule 1 mandatory while that of Order 4 rule 3 is not
made mandatory. This distinction is clearly reflected in the approach of the Courts in
interpreting the two provisions. Thus, for example, the Courts have held the view that
representative action is not a matter of strict law which requires adherence and
compliance. It is regarded as a rule of convenience.
Its application has always been relaxed. It is therefore not to be treated as a
rigid rule but as a flexible tool in the administration of justice. Consequently, failure to
obtain the required approval of the Court to sue in a representative capacity as pre-
scribed in Order 4 rule 3 will not vitiate the validity of the action. See: Anatogu v. Att
Gen. East-Central State (1976) 11 S.C. 109; Otapo v. Sunmonu, (supra); and Obiode
v. Orewere (1982) 1-2 S.C. 170 at 175.” - Per Akintan, J.C.A. in S.P.D.C. Ltd. v.
Adamkue Suit No. CA/PH/163/2000; (2003) 11 N.W.L.R. (Pt. 832) 533 at 584-585.
1603. Principles governing representative actions.
“Thus, for example, the Courts have held the view that representative action is not a
matter of strict law which requires adherence and compliance. It is regarded as a
rule of convenience. Its application has always been relaxed. It is therefore not to be
treated as a rigid rule but as a flexible tool in the administration of justice. Conse-
quently, failure to obtain the required approval of the Court to sue in a representative
capacity as prescribed in Order 4 rule 3 will not vitiate the validity of the action. See:
Anatogu v. Att Gen. East-Central State (1976) 11 S.C. 109; Otapo v. Sunmonu,
(supra); and Obiode v. Orewere (1982) 1-2 S.C. 170 at 175.
On the other hand, a person instituting an action in a representative capacity
must endorse on the writ of summons the capacity in which he sues as the plaintiff or
the defendant is sued (as required in the aforementioned Order 4 rule 1). See: Afisi v.
Lawal (1992) 1 N.W.L.R. (Pt. 217) 350; Otapo v. Sunmonu, (supra) and Alofoje v.
Federal Housing Authority & Ors. (1996) 6 N.W.L.R. (Pt. 456) 559 at 568. Once
the pleadings and the evidence conclusively establish a representative capacity and
that a case has been fought throughout in that capacity, then the trial Court will be
689 Action Paras. 1603-1605
entitled to enter judgment for or against the party in the capacity, even if amendment
to reflect that capacity has not been sought and obtained. However, it would be
otherwise if the case is not made out in a representative capacity. See: Oseni v.
Dawodu (1994) 4 N.W.L.R. (Pt. 339) 390 at 411-412; Ayeni v. Sowemimo (1982) 5
SC 60; Dokubo v. Bob-Manuel (1967) 1 All N.L.R. 113 at 121; Nta v. Anigbo
- Per Akintan, J.C.A. in S.P.D.C. Ltd. v. Adamkue Suit No. CA/PH/163/2000; (2003)
11 N.W.L.R. (Pt. 832) 533 at 585.
1604. When leave to institute an action in representative capacity is unnec-
essary.
“The appellants did not contest that the named families are not from the two commu-
nities of Durobo and Baen neither did they complain that the plaintiffs on record are
not the same persons on the writ and statement of claim. The leave to amend ruling
at pages 66 and 162 was not opposed as I said earlier and being a consent judgment
cannot be appealed from in the absence of fraud or manifest irregularity. In any
event, leave to bring an action in a representative capacity is unnecessary and its
grant, refusal or irregularity do not vitiate a trial provided the title and statement of
claim reflect that capacity and the suit was prosecuted in that capacity to judgment
and judgment was given for or against the plaintiff in that capacity. This presumption
is even stronger when an objection as to capacity was in Limine overruled by the
trial Judge as was done in this case. See the cases of Otapo v. Sunmonu (1987) 2
NWLR (Pt. 58) 587 at 603 and Ibezim v. Ndulke (1992) 1 N.W.L.R. (Pt. 216) 153
at 173.
From all what I have said above, I am unable to accede to the submission of
learned Senior Advocate of Nigeria for the appellants that the amendments of the
plaintiffs’ claim to reflect the status of the representative action is without authoriza-
tion and therefore alters their competence to maintain the suit against the defen-
dants.” - Per Akintan, J.C.A. in S.P.D.C Ltd. v. Adamkue Suit No. CA/PH/163/
2000; (2003) 11 N.W.L.R. (Pt. 832) 533 at 602.
(2) AGENCY
1605. Kaduna refinery and petrochemical company is a legal personality
regardless of the shareholding structure.
“The jurisdiction of the Federal High Court as modified by Part B of the second
schedule to Decree No.107 of 1993 provides Section 230(1) “Notwithstanding any-
thing to the contrary contained in this Constitution, and in addition to such other juris-
diction as may be conferred upon it by an Act of the National Assembly or a Decree,
the Federal High Court shall have and exercise to the exclusion of any other Court in
civil causes and matters arising from …… (q) the administration or the management
and control of the Federal Government or any of its agencies: - (r) subject to the
provisions of this Constitution, the operation and interpretation of this Constitution in
so far as it affects the Federal Government or any of its agencies; and (s) any action
proceeding for a declaration or injunction affecting the validity of any executive or
administrative action or decision by the Federal Government or any of its agencies.”
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