LEGAL PRINCIPLE: CIVIL PROCEDURE – Representative Action – Leave to Sue in Representative Capacity – Failure to Obtain Leave Not Fatal to Action
PRINCIPLE STATEMENT
Where a representative order would have been granted had it been asked for failure to obtain it will not vitiate the action. See Bulai v. Omoyajowo (1968) 1 All NLR 72. It is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of court before filing his suit. 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 act or presumably act on the authority of those they represent, this court does not and will not upset on a bare objection of failure to obtain the approval of the court.
RATIO DECIDENDI (SOURCE)
"Where a representative order would have been granted had it been asked for failure to obtain it will not vitiate the action. See Bulai v. Omoyajowo (1968) 1 All NLR 72. It is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of court before filing his suit. 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 act or presumably act on the authority of those they represent, this court does not and will not upset on a bare objection of failure to obtain the approval of the court."
EXPLANATION / SCOPE
Failure to obtain prior court leave to sue or defend in a representative capacity is not fatal to the action if leave would have been granted. Prior leave is not compulsory—the court’s approach is flexible, based on facts and circumstances. If the parties appear to possess representative capacity and act on the authority of those they represent, the court will not upset the action on bare objection. The court may grant leave nunc pro tunc (now for then). The principle prevents technical dismissal where representation is bona fide. The opposing party is not prejudiced if the representatives genuinely act for the group. The court examines whether the representative capacity is evident from the pleadings and conduct. The rule promotes substantial justice over procedural rigidity.
