LEGAL PRINCIPLE: CIVIL PROCEDURE – Action – Competence to sue in representative capacity – Striking out versus dismissal
PRINCIPLE STATEMENT
Where plaintiffs were not authorised to sue by the persons they purport to represent, or where their competency to sue in a representative capacity is successfully challenged, the proper order is to strike out the claim, not to dismiss it.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Ovenseri v. Osagiede (1998) NLC-2771991(SC) at p. 15; Paras A–B.
"Where plaintiffs were not authorised to sue by the persons they purport to represent or where the competency or locus standi of the plaintiffs to sue in a representative capacity is effectively and successfully challenged by the defence, the proper order would be to strike out such a claim and not to dismiss it."
EXPLANATION / SCOPE
Lack of authority to sue representatively leads to striking out, not dismissal. The principle applies to representative actions. Striking out allows the proper representatives to sue later. Dismissal would be a bar. The rule promotes access to justice. The court will strike out rather than dismiss.