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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: May 16, 2011 SUIT NO. NIC/EN/01/2011 BETWEEN University College Teaching Hospital Board - Claimant/Respondent AND 1. Dr Sunday Christian Ogbodo (President of Resident Doctors at the University College Teaching Hospital Park Lane, Enugu. 2. Dr Chukwudi Onuigboe Gbunam Madu (Secretary of Resident Doctors at the University College Teaching Hospital Park Lane, Enugu. - Defendants/Applicants (The Defendants are sued for themselves and as representing all the Resident Doctors at University College Teaching Hospital Park Lane, Enugu (the “Resident Doctors”) REPRESENTATION Sam. Orji State Counsel, Ministry of Justice Enugu State, for the claimant and with him are Mrs. Nkechi Eneh and Miss Ijeoma Chukwudike. Philip Udeorah, for the 1st respondent. RULING By a motion on notice dated and filed on the 31/1/2011, the 1st respondent prayed this court for the following: An order striking out his name from this suit or in the alternative set aside the processes served on the 1st defendant in this suit, and for further order or orders this court may deem fit to make in circumstances. The grounds upon which this application was brought are: (1) That the 1st defendant/applicant in this suit is not in any way or manner connected with the subject matter of this suit, and (2) The originating processes contain an address which is illusory and or misleading. The said motion is supported by an 11-paragraphed affidavit deposed to by the 1st defendant himself who is the applicant. The first defendant also filed a written address in support of his motion, which is dated 31/1/2011 and filed on the same date. The 1st defendant’s motion on notice is brought pursuant to Order 4 Rule 5, Order 11 Rule 1(1) and Order 15 of the NIC Rules 2007. That on 27th January 2011, the defendant was served with processes connected to a dispute which he is not in any manner interested in and was erroneously described and addressed in all the processes in this suit as President of Resident Doctors at the University College Hospital, Park lane, Enugu, and purported to have been sued for himself and as representing all the resident Doctors at the above-mentioned hospital whereas he is not. The defendant submitted that Order 4 Rule 5 of the NIC Rules 2007 deals with situations where there is lack of or misleading address. That the effect of this is that the court should set aside the processes. Also that by Order 15 of the same Rules, this court is empowered to adopt such procedure as in its view will do substantial justice to the parties. That in this suit, substantial justice cannot but be to release and strike out the name of the applicant from a dispute of which he is not involved and has no interest in whatsoever. The 1st defendant/applicant urged this court to grant this application. In reaction, the claimant/respondent filed a written address dated the 10th of February 2011 but filed on the 11th February 2011 wherein the claimant raised two issues for determination as follows: (1) Whether the applicant has made out a case entitling him to an order striking out his name from this suit. (2) Whether the applicant has made out a case entitling him to an order setting aside the processes served on him. Arguing on issue one, the claimant submitted that a court will only make an order striking out the name of a person in a suit whereby it has been shown that such person was wrongly joined as a party to the suit. That the learned author Nwadialo, in his book, Civil Procedure in Nigeria, 2nd Edition 2000 page 176 wrote that any party be he a plaintiff or defendant, who is wrongly joined in an action may apply for an order of court striking out his name from it. That according to Augie, JCA in Oluwaniyi v. Adewunmi [2008] 13 NWLR (Pt. 1104) 396 at 405, a misjoinder of a party is the joinder of a person who ought not to have been joined. That it was also held in Onabanjo v. Ewetuga [1993] 4 NWLR (Pt. 288) 445, that it is a fundamental principle of law that any person who will be affected one way or the other by the outcome of litigation must be made a party thereto. That any one who is not or who will not be affected by the determination of the suit one way or the other or against whom the plaintiff’s processes disclose no cause of action has no business whatsoever being made a party to the suit. That such a party against whom there exists no cause of action is said to have been improperly joined as he has nothing to answer to in the suit though called upon to do so. To the claimant, the pertinent question is whether the applicant ought not to have been joined in the suit. Or does the claimant have no cause of action against the applicant? The claimant then submitted that (sic) ‘it is important to note notwithstanding the sweeping statement made by the applicant in his submission that he is not in anyway connected with the subject matter of this suit, it is obvious from the facts deposed to in his affidavit in support belie this claim’. That the applicant merely denies being an official of the Association of Resident Doctors at the University College Teaching Hospital Park Lane, Enugu, not that he is not a resident doctor in the Hospital. That indeed, he admits in paragraph 5 of his affidavit that he is of the Department of Obstetrics and Gynaecology of the hospital. Continuing, the claimant submitted that the applicant’s only basis for asking to be struck out of the suit is that he is not the President of the Association of Resident Doctors but that the claimants’ cause of action is against every resident doctor qua resident doctor. That the suit is not merely against those who are expressly named as defendants but against all those they represent in so far as those sued have been sued in a representative capacity. The claimant further submitted that representative action is a rule of convenience which allows all those having common interests in an action to be sued together by suing one or two of them as representative of all those falling under that cases without having to name each and every member of the class expressly on the face of the process. That in Ononye v. Odita & anor [2008] 10 NWLR (Pt. 1096) 483 at 491, Denton West, JCA, citing Iguh, JSC in Re: Adeosun [2001] 8 NWLR (Pt. 714) 200 held thus: It cannot be disputed that where an action is instituted in a representative capacity and or against persons in a representative capacity, that action is not only or against the named parties, they are also by and against those the named parties represent. To the claimant, it is not the law that a plaintiff bringing a suit against a group of defendants in a representative capacity must name particular persons to represent the group. That such plaintiff has the unfettered discretion of naming any persons of his choice from among the group to represent the others. That in the instant case the claimant has named the applicant to represent the others of this group, i.e. resident doctors. The claimant however conceded that it erroneously described the applicant as the President of Resident Doctors, but that even the current manner in which the applicant is described does not change the fact that it is the applicant rather than the President of the resident doctors that is sued as 1st defendant and as representative of the other resident doctors. That the case of Hope Democratic Party v. INEC [2009] 3 KLR (Pt. 264) 623 is instructive in this regard. In that case the 3rd respondent on record was named thus: Prof. Maurice Iwu (Chairman INEC). That the question then was whether it was Prof. Iwu as a person or the Chairman of INEC that was sued as the 3rd respondent, and that the Supreme Court held that it was Prof. Iwu as a person. That the court held that the expression in parenthesis after the name of Prof. Iwu was merely descriptive of him. On the strength of the foregoing, the claimant submitted that the applicant has failed to show that he was wrongly joined in the suit as to entitle him to have his name struck out. On issue two, the claimant submitted that the basis upon which the applicant is asking for the processes served on him to be set aside is that the address for service is illusory and misleading. That the applicant’s complaint is that his address was wrongly stated as Department of Surgery instead of Department of Obstetrics and Gynaecology though he did not state so in so many words. That in the applicant’s view, by reason of this error in the statement of his address for service, he is entitled under Order 4 Rule 5 of the NIC Rules 2007 to apply to set the said processes aside. This, the claimant argued, is a misconstruction of the said provision. The claimant further argued that Order 4 Rule 5 gives the court discretion as to whether to set aside the processes or not by the use of the word “may”. That the court in the exercise of that discretion will have the interest of justice topmost at heart, especially in view of the provisions of Order 5 Rule 3 which empowers this court to direct a departure from the rules where the interest of justice so requires in the event of non-compliance with the rules. That for the defendant to an application to set aside for irregularity he will need to show that he has suffered injustice by reason of the irregularity. That in the instant case, the applicant has not suffered any injustice by the irregularity complained of. That although the applicant’s address was erroneously stated, the claimant nonetheless ensured that he was personally served with the originating processes. That the essence of an address for service is to ensure that a party has notice of the suit against him to enable him answer to it. That since that essence has been achieved nonetheless the interest of justice requires that the court direct a departure from the rules in exercise of its powers under Order 4 Rule 3 to let the matter proceed. The claimant then urged the court to resolve this issue in favour of the claimant. The claimant concluded by urging the court to dismiss this application and proceed with the hearing of this suit. In replying on points of law, the applicant submitted that any averment in an affidavit not challenged or controverted in a counter-affidavit must be accepted and acted upon by the court as true, citing Ude v. A.G. Rivers State [2002] 4 NWLR (Pt. 756) 66 and Dagash v. Bulama [2004] 14 NWLR (Pt. 892) 144. That the only way to controvert an affidavit is by filing a counter-affidavit. Furthermore, the applicant disagreed with the claimant’s argument that a plaintiff in an action against a group of defendants in a representative capacity is at liberty to pick and choose as it pleases him what person or persons he so desires from amongst the group to represent the others. The applicant then submitted that belonging to a particular group does not qualify any person in the group to represent them in any case such as this and any other representative action. That where the court is satisfied that a person does not have the authority of the group to represent them, that person (be he a plaintiff or defendant) must not be allowed to continue in the suit and in that capacity, referring the court to Ebere v. Anyanwu [2006] All FWLR (Pt. 315) 150. That in this case it is evident that the applicant has no interest in the subject matter of this claim and has expressed so in very clear terms i.e. paragraphs 3 and 10 of the applicant’s affidavit. The applicant also argued that the case of Hope Democratic Party v. INEC (supra) cited by the claimant is not useful to its case as in that case, the Supreme Court struck out the name of Professor Iwu because he was sued in his private capacity and not in his official capacity. Also that that case is an election matter which is inapplicable to the case at hand. To the applicant, there is no surgical operation as proposed by the claimant that can cure the defect in the processes filed, and so the argument must fail. The applicant further submitted that Order 4 Rule 5 is a separate provision on its own, clear, unambiguous and does not require other provisions of the rule to be read into it. That the rule is to the effect that where an address simplicita is illusory or fictitious or misleading, the court on the application of the defendant may have the process set aside. Also that the issue as to whether the defendant was served or not is immaterial. Also that a departure form the rules as envisaged under Order 5 Rule 3 of the court’s rules cannot be allowed in circumstances where the complaint borders on where a wrong party is joined in a suit which will certainly work injustice to the party wrongly joined to answer to what he knows nothing about. The applicant finally urged the court to discountenance the argument of the claimant/respondent as lacking in substance and so should be struck out. We have carefully considered the arguments of the parties in this application and the processes in question which were filed by the claimant/respondent. The sole issue for determination by this Court is whether the 1st defendant/applicant as described is the proper party in these proceedings. The applicant’s deposition in his affidavit in support of his application particularly in paras 3, 4, 5 and 8 of the said affidavit all goes to support his arguments that he is not the person sued. We have also noted that there is no counter-affidavit to contradict the said depositions in the paragraphs in question. A perusal of the processes filed and the argument of the applicant and the depositions in his affidavit show that the applicant is not the proper party in this suit neither does he have any interest in the said suit. The claimant/respondent has argued that even if the applicant is not the President of the Resident Doctors at the University Teaching Hospital, Park Lane, Enugu, he is nevertheless a resident doctor in the said Hospital. We do not agree with the claimant on this. The claim of the claimant is against some persons who are holding designated offices of President and Secretary. In other words, the claimant set out to sue specifically the President and Secretary of the Association of the Resident Doctors both by name and their official designations. The applicant in this case is not the President or even an official of the said Association the claimant set out to sue, a fact conceded in the claimant’s submissions. This means the applicant has no business in this suit as presently couched. It is a known principle of law that any person who is not or who will not be affected by the determination of the suit one way or the other or against whom the plaintiff’s processes disclose no cause of action has no business whatsoever being made a party to the suit. Such a party against whom there exists no cause of action is said to have been improperly joined as he has nothing to answer to in the suit though called upon to do so. We, therefore, hold that in this suit the 1st defendant, not being the President of the Association of Resident Doctors at the University College Teaching Hospital Park Lane, Enugu, is not a proper party in this suit and ought not to be made a party. Consequently, we order that the name of Dr. Sunday Christian Ogbodo be struck out in this suit. The applicant’s prayer for setting aside the entire processes is, however, hereby refused. Ruling is entered accordingly. We make no order as to cost. ________________________ Hon. Justice B. B. Kanyip Presiding Judge _____________________________ __________________________ Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge