‎
‎
‎Introduction
‎
‎In last week’s feature, we discussed the following themes: principles guiding the grant of declarations; the burden and standard of proof in declaratory actions and the power of the court to grant declarations. This week, we shall continue from where we left off last week after which we shall discuss the meaning of parties in judicial proceedings for declarations, followed by conclusion.
‎
‎
‎Power Of Court To Grant Declarations (continues)
‎Paragraph G is in line with Order 23 Rule 5 of the Lagos State High Court (Civil Procedure)) Rules, 1994 earlier referenced.
‎
‎On the exercise of the courts’ jurisdiction to make declaratory reliefs, in CHIEF ETUEDOR UTIH & ORS. VS. JACOB UMURHURHU ONOYIVWE & ORS. (1991) 1 NWLR (PT. 168) 476 C.A, the Court of Appeal held that the jurisdiction of the courts is derived from the Constitution and that the question as to whether the court can exercise jurisdiction in an action would depend upon the endorsement of the claim on the writ of summons and statement of claim because it is only where a cause of action is disclosed that the courts can exercise jurisdiction unless precluded by ouster provisions.
‎
‎In the above case, the court supported the position of the law prior to the 1979 Constitution which was to the effect that the courts of law had no jurisdiction to entertain any question relating to the appointment, approval of appointment, recognition, grading and deposition of a chief.
‎
‎The court went on further to draw a distinction between making a declaration of customary law relating to the selection, appointment, recognition, installation, grading, deposition or abdication of chiefs under the Chief’s :aw or the 1963 Constitution and making a finding simpliciter of what the customary law is.  It held that while it lacked jurisdiction in respect of the former, it is eminently rested with jurisdiction in respect of the latter.
‎
‎See the case of MADUMERE Vs. OKAFOR (1990) 3 NWLR (PT. 138) 137 C.A, where the curt held as follows concerning the power of courts to make declarations:
‎“The power of court to make a declaration is almost unlimited, it being limited only by its discretion and once the judge has exercise  his discretion to grant the declaration sought, the higher courts would not interfere in the exercise provided it has been exercised in a judicial manner,”
‎
‎Therefore, the courts have an unlimited power to grant declarations which are only limited by their discretion where its exercise will not be judicial or where it is frivolous and vexatious to do so.
‎
‎See also ORJI Vs.  EMOVON (supra) where the court held as follows:
‎“The power to make a binding declaration is a discretionary remedy.  The court cannot make a declaration of a right on admission or default of pleadings. A declaration of a right can only be made if the court is satisfied by evidence.  Thus, a declaratory judgment can be after a proper argument and cannot be made merely on admission by the parties whether in pleadings or otherwise.”
‎
‎From the foregoing, it can be said that it is not enough that the parties put down their case in the pleadings for the court to look at and make declarations; rather, the parties must thereafter have the opportunity of having proper arguments in court before such declarations can be made.
‎
‎See also UTIH Vs. ONOYIVWE (1991) 1 NWLR (PT. 166) 166 S.C, where the court held as follows:
‎“The courts may on their discretion make declarations upon any matter whatsoever within the limits of the general jurisdiction and subject to private statutory provision.”
‎
‎In the same case, Justice Akpata, JSC, added as follows:
‎“There is a distinction between the original jurisdiction of the superior courts and their supervisory jurisdiction.  Where a statute purports to exclude the jurisdiction of the High Court and vest jurisdiction in a tribunal or an inferior court, the High Court, in exercising its supervisory jurisdiction, not original jurisdiction, may by certiorari order quash the decision  of the tribunal or inferior court either for breach the rule of natural justice or for following the wrong procedure.  It may also by a declaratory order render the tribunal’s decision null and void,  Whether both the original and supervisory jurisdictions of the court or only the one or the other are affected  by an ouster provision depends upon the wording of the provision of the statute or constitution.”
‎
‎Meaning of Parties
‎In law, it is only person who possess personality can sue and be sued.  In this context, the parties referred to must not only be legal persons but persons with sufficient interest to seek a relief from the court. They may be natural or juristic bodies capable of bearing rights and duties.
‎
‎The following groups of persons are parties who, in law, can sue and be sued:
‎Natural Persons:
‎
‎These are individuals whose legal rights have been infringed and ordinarily have that legal personality to sue or even be sued.
‎
‎Corporations:
‎By virtue of the Companies and Allied matters, 1990 a corporation is recognized as  from the date of incorporation “as a body corporate, capable forthwith of exercising all the powers and functions of an incorporated company including the power to hold land, and having  perpetual succession and a common seal…”
‎
‎A corporation is, therefore, recognized as an artificial legal entity which is a separate and distinct entity from the members of the company or the organs and officers of the company.  A company can, therefore, bring an action against a wrong done to the company in the company’s name (as a legal personality) and not in the name of the individuals.
‎
‎See also the rule in FISS Vs. HARBOTTE (1843) 67 E.R. 189, which states that where a corporation can be said to be accorded standing to sue for declaration in all cases in which a natural person not subject to any disability can sue.  But an officer of the company cannot seek a personal redress for a wrong done to the company.
‎
‎There are also certain bodies which are regarded as quasi-legal or quasi-corporate bodies, for example, the Nigerian Bar Association.  They are identified in law as being capable of bearing certain rights and duties.
‎
‎Representative Actions:
‎It has not become possible for a group of persons, or separate individuals who are not a body corporate to sue or maintain a single action.
‎
‎Where the group of individuals is such that it can be easily identified or ascertained, then they can seek declarations in a representative action.
‎
‎In bringing a representative action, one has to consider what is common to the class as a whole and not what differentiates the cases of the individual members.  Also, one has to consider if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent.
‎
‎See the case of ORAGBADE Vs. S. M. J. ONITIJI (1962) ALL N.L.R, where a plaintiff brought an action for himself and on behalf of others for declaration of title over farm land.  The Supreme Court held that there was no common grievance and that the relief sought was not beneficial to all whom the plaintiff poses to represent.
‎
‎Trade Unions & Partnerships:
‎Trade Unions have a juristic personality upon registration.  These bodies can sue and be sued in their registered names.  See the case of TAFI VALE RAILWAY COMPANY Vs. THE AMALGAMATED SOCIETY OF RAILWAY SERVANTS (1901) A.C. 426, where the held that the action against the defendant society which was a trade union was properly constituted and that the defendant could be sued in tort in its registered name.
‎
‎In Partnerships, the rights and liabilities of the partnership is also the rights and liabilities of the partners and can be enforceable by and against them individually.  See part   of the Companies and Allied matters Act.
‎
‎An action from a partnership could be brought in three different ways:
‎
‎It could brought in the name  of any one of the partners acting in a representative capacity;
‎It could be brought in the name of all the partners; or
‎It could be brought in the registered name of the partnership.
‎
‎
‎Conclusions
‎We now already know that one good advantage of declaration lies in its flexibility, in the sense that it is a liberal form of remedy.  But caution must be taken by the courts in the exercise of their discretionary powers in granting declaratory orders.  Such discretion ought to be exercised judicially and not frivolously.
‎
‎The court is not bound to grant declaratory orders because of its discretionary powers even where it has jurisdiction to do so.  For example, where the plaintiff has no sufficient interest or that the matter before it is inexpedient or not justiciable for one reason or the other, then the court can decline or refuse to grant such order.
‎Declaratory orders so far have been considered a very convenient and successful form of equitable reliefs in Nigeria today.  Once the parties have the requisite interest in the subject matter in dispute, it is then left for the courts to exercise their discretion judicially. (The end).
‎
‎
‎
‎
‎THOUGHTS FOR THE WEEK
‎
‎“The overreach of the judiciary can be attributed to, one, the inability of the executive to deliver; and two, the tendency to issue judicial pronouncements for national good. The second element is dangerous because that’s the function of the government”. -Kapil Sibal.