FOR REPRESENTATIVE INTEREST, THERE MUST BE COMMON INTEREST

REPRESENTATIVE ACTION IS A RULE OF CONVENIENCE – HISTORY OF THE PRACTICE

Assuming that I am wrong and the action ought to have been instituted in a representative capacity, what is the position of the law? The rule as to representative actions was derived from the Court of Chancery in England, which required the presence of all parties to an action so as to put an end to the matters in controversy. See Anatogu v. Attorney General of Eastern Nigeria (1976) 11 SC 109. The rule has been described as a “rule of convenience only.” See Hamisu v. Abergavenny (Marquis of) (1887) 3 TLR 324 at 324. As a rule that was originated for convenience, and for the sake of convenience, it has been relaxed, (see Bedford (Duke of) v. Ellis (1901) AC 1 at page 8). As a rule of convenience, it is a matter, which ought not to be treated as rigid but as a flexible tool of convenience in the administration of justice. See Anatogu v. Attorney General of Eastern Nigeria. In other words, Courts of law should not myopically follow the rule rigidly and fall into a big ditch and find themselves in a state of mirage where it becomes impossible to retrace their steps to do justice in a given case. On the contrary, Courts of law should invoke the rule where it is convenient to do so to assist them in doing justice in a given case. It is this aspect of doing justice in a case that vindicates the element of convenience built into the rule. The rule is not cut-and-dry. After all, justice is paramount in the judicial process. It is the cynosure of the process.

— Niki Tobi, JSC. Mozie & Ors. v. Mbamalu & Ors. (2006) – S.C.345/2001

REPRESENTATIVE ACTION: COURT WILL NOT UPTURN JUDGEMENT BECAUSE LEAVE WAS NOT SOUGHT

In Wiri v. Wuche (1980) 1-2 SC 1, this Court dealt exhaustively on representative actions. In the case, the Court said: “The attitude this Court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and the authority of those they represent, this Court does not and will not upset a judgment of the lower Court merely on a bare objection of failure to obtain the approval of the Court.” The Court had earlier said at page 18 of the Report: “There is no doubt that the authority for plaintiffs to sue on behalf of a community must come from that community and the order for leave to prosecute on behalf of a community under the rules of the High Court of Eastern Nigeria must come from the Court (and, here, we are in agreement with the decision in Oguchi v. Egbuchi (Supra) (see also the decision of the High Court of Eastern Region in Nsima v. Ole Nnaji and others (1961) 1 All NLR 441; otherwise the plaintiffs must be regarded as prosecuting such proceedings in their personal capacity.” It was after the Court made the above statement that it came to the conclusion that the Court will not upset a judgment of a trial Judge merely on a bare objection of failure to obtain the approval of the Court. The decision of this Court in Wiri v. Wuche comes to this: although leave is necessary at the trial Court to sue in a representative capacity, an appellate Court will not upset the judgment merely because such leave was not obtained in the trial Court.