The prejudicial effect of an order dismissing the suit is enormous as it forecloses albeit, wrongly, the right of relitigation, if not set aside and also dangerously brings the court into the arena of conflict: Ekpeyong v. Nyong (1975) 2 SC 71.
— Danjuma, JCA. Tony Anthony Nig. Ltd & Ors. v. NDIC (CA/L/630/2009 • 25 January 2011)
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In the case of Obiuweubi v. CBN (2011) 7 NWLR (pt.1247) pg. 465. this court held that – “For the State High Court to have jurisdiction under Decree 107 of 1993 the cause of action must arise before the 17th of November 1993 and the trial must also be in progress before the said date. That is to say all part-heard cases in the State High Court before the 17th November 1993 can continue after 17th November 1993 in the State High Court because Decree NO.107 of 1993 does not have retrospective operation and in view of Section 6 (1) “of the Interpretation Act Cap 192 Laws of the Federation of Nigeria 1990.”
Be that as it may, sufficient provision is made in Order 61 Rule 1 of the National Industrial Court [Civil Procedure] Rules, 2017 for withdrawal or discontinuance of actions. Order 61 Rule 1[1] of the National Industrial Court [Civil Procedure] Rules, 2017 provides: “Where before the date fixed for hearing or judgment, any party to the proceedings desires to discontinue a claim or withdraw any part thereof, such a party shall give notice of discontinuance or withdrawal in writing to the Court and to the other party. The Court shall upon the discontinuance or withdrawal make such order or orders as may seem just.” Sub-rule 3 provides that the application shall be by motion on notice supported by affidavit and filed 7 days before the date fixed for hearing. Order 17 rule 1[1] of National Industrial Court [Civil Procedure] Rules, 2017 provides that, “Where by these Rules, any application is authorized to be made to the Court, such application shall be by motion on notice or motion ex-parte and shall state under what Rules of the Court or Act or Law it is brought.” These Rules require that the application must be in writing and served on the other party.
— I.G. Nweneka, J. Anyina v. Messrs First City Monument Bank Ltd. (NICN/ABK/03/2017, 12th December 2017)
It is long settled that once the pleadings and the evidence of a party conclusively disclose a representative capacity and it is clear that the case was fought throughout in that capacity, the trial court can properly and justifiably enter judgment for and or against the party concerned in such representative capacity, even if an amendment to reflect that capacity had not been applied for and obtained. See Afolabi and others v. Adekunle and Another (1983) 2 SCNLR 141 or (1983) 14 NSCC 398 or (1983) 8 SC 98; Ayeni v. Sowemimo (1982) 5 S.C. 60, Dokubo v. Bob Manuel (1967) 1 All NLR 113 at 121, Mba Nta and Others v. Ede Anigbo and Another (1972) 5 S.C. 156 at 174 – 176. It would be otherwise if the case is not made out in a representative capacity. See Onwunalu Ndidi and Another v. Osademe (1971) 1 All NLR 14 at 16. This is because the law in such circumstance is that the court should do substantial justice and save multiplicity of suits by amending the capacity in which the suit is brought or defended so as to bring it in line with the pleadings and the evidence. Where, therefore, an action is brought in a representative capacity, failure to express that fact on the writ of summons does not ipso facto invalidate the proceedings and an appellate court may on its own motion amend the title to the proceedings in order to show clearly the capacity in which a party has sued or is sued provided the pleadings and the evidence conclusively show that the action is prosecuted or defended in a representative capacity. See too Iro Elera v. Inyima Ndukwe (1961) All NLR 564. Where no evidence of representation has been given, such a case cannot be one where an amendment can be made by the court to the writ of summons and the Statement of Claim or Defence for that by itself would not cure the lack of evidence.
— Iguh, JSC. Kyari v Alkali (2001) – SC.224/1993
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