LEGAL PRINCIPLE: CIVIL PROCEDURE — Representative Capacity — Challenge to Capacity — When Challenge Must Be Raised
PRINCIPLE STATEMENT
A challenge to a party's representative capacity is a matter that can only be argued as a new issue by leave of court; where no leave was obtained and the parties fought the suit in a representative capacity, the challenge fails.
RATIO DECIDENDI (SOURCE)
Per Belgore, JSC, in Ezekude v. Odogwu & Ors (2002) NLC-631998(SC) at p. 3; Paras A–C.
"This is a matter that can only be argued as new issue by leave of court. No leave was obtained. At any rate, it is very apparent in the record before this court that all parties fought the consolidated suits in a representative capacity."
EXPLANATION / SCOPE
A challenge to representative capacity is a new issue if not raised in the lower courts. Such an issue requires leave of the appellate court. Failure to obtain leave renders the challenge incompetent. If the parties conducted the litigation in a representative capacity without objection, the challenge is even less sustainable. The principle prevents parties from raising capacity issues for the first time on appeal. The opposing party is entitled to notice. The court will not allow a party to change the basis of the case. The rule applies to both plaintiffs and defendants. The appellant must show that the capacity issue was raised below or obtain leave. The principle promotes finality.
