Introduction to Parties in a Civil Action
One of the preliminary issues considered before instituting an action in court is: “Who can be a party to a suit?”
A litigant through his lawyer has to decide who he wishes to sue base on his legal rights that have been breached. Any irregularity on the appropriate parties in an action could lead to the suit been struck out.
Parties in a civil suit are categorized into two: Plaintiff and Defendant. In some jurisdiction (Lagos State), parties to a suit could be: Claimant and Defendant.
It is just a change in nomenclature.
In some civil actions like matrimonial proceedings and election matters, parties can be designated into: Petitioner and Respondent.
In some other actions like Garnishee proceedings, parties may further be refered to as Garnishee, Garnishor and Judgement debtor.
No matter the designation of parties, it is just change in nomenclature due to the specie of action involved, the general law is that a person cannot be both the plaintiff and Defendant in a suit. There will always be someone who sues and the other who is sued. See UDE v. NWANGWU (1995) 9 SCNJ 41.
The only exception to this rule is in third party proceedings where a Defendant in a suit is equally a Claimant to a third party.
Who can be one of the Parties in a Civil Action?
a. Only a person in law can sue.
A person in law is either a natural person (human being) or an artificial person( Registered bodies). Only a person in law can sue and be sued. See the case of
b.The person in law must have locus Standi.
The person in law must have the locus Standi to sue in the suit. Locus Standi means that the person must have legal right that has either been violated, being violated or about to be violated.
The law and court system has no room for meddlesome interlopers(for those who have no right to protect).
Types of Parties in a Civil Action
A. Necessary Parties
This is a party whose presence is essential for the effectual and complete determination of the issues before the court. it is a party in the absence of whom the whole claim cannot be effectuallyband completely determined. See the case of Okwu v Umeh(2016) 4 NWLR. pt 1501 at p.124. Messrs U Maduka Sent(Nig) Ltd v B. P. E (2019) 12 NWLR PT.1687. P.433
A necessary party is that person whose presence is essential for the effectual and complete determination of the issues before the court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined.
This are parties who, though not interested in the Plaintiff’s claim, are made parties for some good reasons. For example, where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in matters which gave the plaintiff the right to rescind.
This are parties who have an interest or who may be affected by the result of the suit.
As noted by asknigeria, This are parties who are not really involved in the set of facts constituting the cause of action, but are made parties to the suit by virtue of the office they hold or occupy. See PADAWA v. JATAU (2003) 5 NWLR (Pt. 813) 249
Joinder or Non-joinder of Parties in Civil Action
More than a party(one person) can be joined in a civil suit. A party can be joined in a suit as either a co-plaintiff or as co-defendant; as a necessary party, a desirable party, a proper party or a nominal party.
More than one persons can institute an action together as co-plaintiffs. More than one persons can as well be sued together as co-defendants.
Parties can be joined in the beginning of a suit before filing of processes. Parties can also be joined when matters are already pending in court. For the latter, parties are joined by motion on notice, supported by affidavit and written address and an application for joinder can be made by any of the parties(plaintiff or Defendant).
A third party who is interested in a suit can also apply to be joined, though such a party must satisfy the court that he is a party who ought to have been joined or who may be affected by decision in the suit. See the case of Chief of Army Staff v Lawal(2012) 10 NWLR.P.62
Again, Court can suo moto order a party to be joined in a suit, where that party is necessary to the case and it’s determination. See Green v Green
Where parties are joined in a suit,they will be bound by the decisions of court in the suit.
Also, where a party who ought to be joined in a suit is not joined, such suit is guilty of non-joinder and upon application by either of parties ( or court suo moto), the person can be joined.
Reasons for joinder of Parties in a Civil Action
The essence of joining numerous persons in a suit is to prevent multiplicity of actions especially where the parties have common interest to defend or common rights to enforce. See the case of Okelue v Medukam(2011) 2 NWLR(PT.1230) P.176
Another reasons for joinder is for effective determination of the suit. Thus, anyone whose presence is crucial in a suit for it’s effective resolution, must be joined in the suit.
Factors that determine who can be joined in a suit.
a. whether the issue that calls for determination cannot be completely and effectually settled unless the party sought to be joined is made a party.
b.Whether his interest will be irreparably prejudiced if he is not made a party. See P.P & P (Nig) Ltd v Olaghere( 2019) 2 NWLR PT.1657. P.548.
For Defendant, factors to consider:
a. Is it possible for the court to adjudicate upon the cause of action set up by the plaintiff unless the person is added as a Defendant?
b. Is the person someone who ought to have been joined as a Defendant in the first instance.
c. Is the cause or matter liable to be defeated for non-joinder?
Misjoinder of Parties
This is a situation where a person who ought not to have been sued in a suit was wrongly joined. Upon application, the person’s name can be struck out in the suit.
Effect of Non-Joinder or Misjoinder
The general principle of law is that a plaintiff is not bound to sue a particular person or number of persons. He can elect to sue whoever he desires to sue.
But to what extent? what of a situation where the outcome of the suit will affect a third party who was never joined in a suit?
Anyways, non-joining of parties or misjoinder of parties in a suit is not fatal to that suit. In effect, failure to join necessary party in the suit shall not defeat the suit by reason of non-joinder or misjoinder.
The Court also may order the person that ought to be joined to be joined as far as the person’s presence will be necessary for the effective determination of the suit. See the case of P.P & P (Nig) Ltd v Olaghere( 2019) 2 NWLR PT.1657. P.548 where the court held:
“An action is not defeated by reason of misjoinder or non joinder of parties. The court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of parties actually before it”.
The failure to join is merely treated as irregularity. But where the irregularity leads to unfairness, the judgement may be set aside on Appeal. See BELLO V INEC( 2010) 8 NWLR(PT.1196). P342
While it is the law that no cause ór matter shall be defeated by reasons of the misjoinder or non joinder, yet in the absence of a proper party or necessarily party before the court, it appears an exercise in futility for the court to make an order that will affect a stranger who was never a party to the suit or given an opportunity to be heard.
Parties in a Representative Capacity.
In a representative suit, a person or some persons can initiate an action on behalf of a group of persons or class of persons, community or family.This are also class of parties.
What ever decision made in the case will equally affect the other class, on whose behalf the action was instituted. What is important is that the person’s suing must have the consent of that class of persons to institute the suit on their behalf and they may aslo be common interest among the parties.
In a representative suit, the parties will be:
a. Ngwu Michael
b. Iteshi Stephen
c. Ngwu peter
d. Egbo Sandra
e. Lynda Nneka
(for ourselves and on behalf of Nkwo Community in Izzi LGA)…….. Plaintiff
Parties in a Third Party Proceedings
In a third party proceedings, there are three parties.
a. The plaintiff who instituted the action
b. The Defendant who was sued.
c. A third party joined by the Defendant.
The summary of this proceedings is that the Defendant is answerable to the suit of the plaintiff while the third party is answerable to the claims of the Defendant. Hence, even where the main suit has been determined, the third party proceedings can continue.See Total Nigeria Plc v Delmar pet.co Ltd.(2003) 7 NWLR(PT.819) 314. See P.P & P (Nig) Ltd v Olaghere( 2019) 2 NWLR PT.1657. P.549