Introduction
In general, before any person may initiate an action against another in a trial, there are preliminary but essential matters that must first be considered. The problem of getting the correct parties before the court is an example of these preliminary matters. There must be a complainant who institutes the case, and a defendant who is being sued, for any lawsuit to be properly concluded in any trial. Parties are often identified as applicant and respondent in some interlocutory proceedings and are referred to as petitioners and respondents in some special cases such as matrimonial causes, election petition.
The nomenclature to be given to each party in the case therefore differs according to the form of action and conditions of the Court’s rules. However, the claimant and the defendant in the same case or the plaintiff and defender at the same time cannot have a dual position. It is a fundamental principle of law that bringing the correct parties before the court is necessary to enable the court determines the issue between the parties effectively and completely in order to do justice in the matter.
Basically, the parties to a civil suit can be divided into four categories namely: proper parties, desirable parties, nominal parties and necessary parties. The basis of categorization depends on the degree of interest such persons have in the action.
2.1Proper party
These are those who, although not interested in the complainant’s claim, are made parties for some good reasons, e.g. where an action is brought to terminate a contract, any person is a proper part of it who was active or competing in the matter that gave the complainant the right to withdraw from the contract, like the witness in a contract
2.2 Desirable party
There are individuals who have an interest in the matter or who may be influenced by the results or outcome of the case, the absence of these individuals does not automatically influence the decision, but then it may be appropriate to include them as parties simply because of a particular role they have played in the case. This was establish in the case of Peenok Investment Limited V. Hotel Presidential Ltd (19820) 12. S C PL, the claim of the plaintiff was for the sun of 342.000 Naira being amount due to the plaintiff from the defendant for the use and occupation of the plaintiff’s property in Port-Harcourt and also mesne profits. In its defence, the defendant contended that it ceased to be the tenant of the plaintiff since October 1972 because the lease of the plaintiff over the said property had been cancelled and ownership of same reverted to the River States Government in accordance with River States Edicts Nos. 15 & 17 of 1972. As such, from 16th October 1972, the plaintiff ceased to be the owner of the property and therefore not entitled to rents on it. In its judgement, the trial judge gave judgement in favour of the plaintiff against the defendant in the sum of 81.000 Naira for the use and occupation of the property by the defendant.
Being dissatisfied with the decision, the defendant/appellant appealed to the court on grounds that the plaintiff ought to have joined the Government of River States as a party in the action at the lower court and not having joined the said Government, it was improper for the court to raise issues concerning the validity of Edicts 15 & 17 of 1972. On appeal to the Supreme Court, one of the issues for determination was whether the plaintiff ought to have joined the River States Government as party to the action before the lower court can properly raise the issue of the validity of Edict Nos. 15 & 17 of 1972, and whether non joinder of the state Government was enough to defeat the cause of action? The Supreme court, in response to this question, unanimously held “that each of the claims (namely claim for use and occupation of property and mesne profits) before the court can be decided effectually and completely without the need to join the Government of River States as a party in the action. Prima facie each of the claims is a claim which the appellant/qua plaintiff is entitled to pursue and which cannot in anyway be said to be improperly constituted. None of the claim is for a declaratory relief against the State Government. Accordingly, the River State was not a necessary party to the proceedings under appeal because the judgement will not affect them. However, because the Government of the River States may be indirectly affected by the pronouncement which could be made even if obiter, on the validity or otherwise of Edicts No 15 & 17 of 1972, it will be “Desirable” to have the said Government joined as a party to the proceedings in order that it may be bound by the result and pronouncement therein.
2.3 Nominal party
An entity whose involvement as a defendant in a case has no bearing on the outcome. The entity is usually called upon due to court procedures mandating its presence in the case[1].A party is a nominal party when he has no interest in the subject matter of the suit, but he is joined for the purpose of his office, or may be joined to avoid procedural defect. Such person is just a party in name hence the appellation “nominal party”.
2.4. Necessary parties
These are persons who are not only interested in the subject matter of the proceedings but also in whose absence; the proceedings cannot be fairly dealt with. Suffice it to say that the question to be settled in the action between the existing parties must be question, which cannot be properly, effectively and completely settled unless such a person is made a party to the action.
The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has a relevant evidence to give on some of the questions involved; that would make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance and is afraid that the existing parties may not advance them adequately. That would mean that on the consideration of a clause in a common form contract many parties would claim to be heard and if there were power to admit any, there is no principle of discretion by which some would be admitted and others refused. The court might often think it convenient or desirable that some of such persons should be heard so that the court should be sure that it had found a complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party” this was in the case of (Amon v. Raphael Tuck & Sons)[2].
2.5 cause of action
A cause of action in law is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings a suit (such as breach of contract, battery, or false imprisonment)[3]. The legal document which carries a claim is often called a ‘statement of claim’ in English law, or a ‘complaint’ in Anglophone Cameroon. It can be any communication notifying the party to whom it is addressed of an alleged fault which resulted in damages, often expressed in amount of money the receiving party should pay/reimburse[4].
To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the pleading that initiates a lawsuit. A cause of action generally encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy. Often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action. Although it is fairly straightforward to file a Statement of Claim in the courts of record of Anglophone Cameroon, if it is not done properly, then the filing party may lose his case due to simple technicalities.
A cause of action was defined comprehensively in Société Nationale D’Electricité Du Cameroon (SONEL) V Vincent Veche (Trading under the name and style of Electro-mesches Enterprises)[5]. It was in this case noted by Njuzy JCA that the notion denotes every fact (though not every piece of evidence) which must be proved if traversed to support his right and the judgment of the court[6]
2.6 Jurisdiction
A court of law can only exercise judicial powers when it has jurisdiction. Jurisdiction is the legal capacity of a court to hear and determine judicial proceedings. It is the power to adjudicate concerning the subject matter of the controversy. Jurisdiction is fundamental in any proceeding and lack of it is fatal to such proceedings
Jurisdiction is coin from the Latin word ius, iuris meaning “law” and dicere meaning “to speak”. It is the practical authority granted to a legal body to administer justice within a defined field of responsibility. We have material and territorial jurisdiction
- Material jurisdiction
Material jurisdiction is governed by section 15 and 18 of law No 2006/015 of 29 December, 2006 on judicial organisation which relates to the court of first instance and high court respectively. Section 15 of the above cited law limits the material jurisdiction of the court of first instance to below ten million while section 18 places the material jurisdiction of the high court to an amount above ten million
- Territorial jurisdiction
It is the distribution of courts in various towns in Anglophone Cameroon. Each sub division has a court of first instance, each division has a high court, and each region has a court of appeal. The criteria for competence of a court were adumbrated in Madukolo V. Nkemdilim[7] as follows
- The court must be properly constituted as regards numbers and qualification of members of the beach and no member is disqualified for one reason or the other(the case of the people of Cameroon V. Fon Doh)
- The subject matter of the case must be within the court’s jurisdiction and there must not be any feature in the case which prevents the court from exercising jurisdiction
- The case before the court must be initiated by due process of law and upon fulfilment of any condition precedent to exercise jurisdiction. Action for breach of contract shall be brought in the place where the defendant resides or where he carries on business
2.7 condition precedent
Sometimes, the law requires some certain conditions to be satisfied before filling an action in court. Such conditions precedent maybe by way of service of pre-action notice or satisfaction of other steps required by law before commencement of civil action
It is thus imperative that the lawyer considers whether there is a condition precedent which must be complied with prior to the commencement of the proposed suit[8]. This is so because it is an elementary principle of law that a suit commenced without the satisfaction of a statutorily prescribed condition precedent is incompetent and will be struckout. For example all rent actions in both the high court and magistrate courts must be commenced only after therelevant statutory “quit notices” and “notice to recoverpossession” has been issued to the tenant potential defendant.The court of appeal endorsed this sound point of principle inBarrister Bonu Innocent (Doing business under the name andstyle Galaxy Snack Bar) v Cameroon Printing & PublishingCompany Private Ltd Company (CP & PC Ltd)[9]
2.8 statute Bar
This is an Action, agreement, claim, obligation, or right that can no longer be the subject of a legal action because the time limit imposed by the limitations act (see statute of limitations) has been exceeded[10].The following are limitation periods prescribed by the limitation laws.
- Actions founded on simple contract( limitation period is 6years)
- Action for damages for negligence
- Action for damages for lender 3years
The limitation period begins to run when the cause of action acrues and the period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the write of summons was filed if the time on the writ is beyond the period allowed by limitation law, the the action is statute barre
[1]a href=”https://thelawdictionary.org/nominal-party/” title=”NOMINAL PARTY”>NOMINAL PARTY</a>
[2]https://lawcarenigeria.com/peenok-investments-ltd-v-hotel-presidential-ltd/
[3] See Sir John Baker, An Introduction to English Legal History (4th ed); S. F. C. Milsom, Historical Foundations of the Common Law (2nd ed).
[4]https://en.wikipedia.org/wiki/Cause_of_action#cite_note-1
[5](2012) 1 CCLR PT 15 1.
[6] Michael A. Yanou. Practice and Procedure in Civil Matters in the Courts of Records in Anglophone Cameroon. 2015. He has published extensively on various aspects of law and society in Cameroon.
[7]F.S.C. 344/1960 judgement delivered bySir Lionel Brett. F.J.
[8] Michael A. Yanou. Practice and Procedure in Civil Matters in the Courts of Records in Anglophone Cameroon 2015, pg. 35 He has published extensively on various aspects of law and society in Cameroon
[9]Suit No CASWP/73/2007 Unreported
[10]http://www.businessdictionary.com/definition/statute-barred.html