Proper Time for Striking out a Suit from a Party

By Stanley Maduabuchi Ofoegbu Esq

Every court in Nigeria is guided by its rules which are otherwise known as rules of court and procedures.

The rules of court no doubt, are not made for the fun of it. They are rather meant to guide the court for proper adjudication of cases as presented by the parties and hence, they are meant to be obeyed by all whose cases are before the court inclusive of the court. See STOWE V BENSTOWE (2012) 9 NWLR (Pt.1306) p450 (SC), AFOLABI V ADEKUNLE (1983) 2 SCNLR P.141.

They are made for convenience and order in the hearing of cases in court. They are made to help the course of justice rather than defeat the same and therefore, they are aids to the court and not masters of the court. Also, while rules of court are meant to be obeyed, where their strict observance may lead to injustice on the parties, the court are enjoined to be liberal in interpreting the rules in order to do substantial justice see   ODUAH V FRN (2012) 11 NWLR (pt1310) p.76.

However, without prejudice to the fact that the rules of the court are the oil upon which the administration of justice strives, the rules of the court being the rules of procedure are not without flaws.

As a matter of procedure, it is trite that where a party who has been joined in a suit, wants the court to strike out his name on the ground of misjoinder, such a party or parties is or are enjoined to approach the court with an application by way of motion.

While an application by a party praying the court to have his or her name struck out might seemingly be a harmless application, the pertinent question is, at what point should such an application be made in the course of the proceedings considering the fact that a party who feels that he or she was improperly joined has the legal right to pray the court to have his or her name struck out?

It has been held by the court including the apex court that an application seeking to strike out the name of a party from a suit must be made timeously before the hearing commenced. In other words, a party who is joined in a suit and who allows the same to go into the hearing, cannot properly file an application seeking to have his name struck out. By hearing, it means that parties have opened their case by calling or adducing evidence among others and hence, one begins to wonder about the purport of ORDER 13 RULE 14 (2) of the National Industrial Court civil procedure rules 2017 which empowers the court to strike out the name of any person who in the opinion of the court was improperly joined irrespective of the stage of the proceedings.

Ordinarily, one might ask, why sue a party you have no claim against or who by law is exempted from being sued without meeting certain requirements? Is it not better to have his name struck out of the suit while proceeding with others who are seen as the proper parties? There might be merit and logic in this argument however, the challenge and difficulty will arise from the fact that striking out a party from a suit carries on its own, a toga of consequential amendments and then the big question arises thus: how do you amend an originating process when parties have already opened their case and evidence touching on the party or parties whose name was struck out have already been adduced?

What about situations where a party has even closed his case after calling evidence only to be welcomed with an application by a party calling for the striking out of his name and the same being granted by the court? Will you now go back to alter your statement of claims including your witness statement on oath already adopted and document tendered? Application of this nature will not only occasion delay but technical injustice especially, on the claimant.

To curb the anomaly associated with such an application, the court in AZORO V CBN and ORS (2018) LPELR-44389 CA held as follows:

“It is settled law that a party seeking to raise the issue of misjoinder of parties must do so at the earliest time and not wait to the hearing of the matter to do so. Where the issue is raised at the hearing of the matter, it should be discountenanced. This point was made by the Supreme court in AYANKOYA VS OLUKOYA (1996) 4 NWLR (pt440)1 at 16 D-G thus “the rule in the high court civil procedure rules of Oyo State permitting joinder of parties or joinder of causes of action are designed to prevent multiplicity of action and prevent delays and thus , save the parties unnecessary cost. Consistent with the beneficial and laudable objectives of the aforesaid rules, any defendant who intends to raise the issue of misjoinder of parties or causes of action, has to do so without delay by making an application to the court so that the remedy provided by the rules can be granted”

From the above, it is obvious that an application seeking to strike out the name of a party from a suit is incompetent if such an application is filed when hearings have already commenced. Courts should be wary of such applications irrespective of what the rules provide such as the National Industrial court rules of 2017.

In summary, a party who intends to commence an action in court must take steps to ensure that only the proper and necessary parties are before the court. Proper and necessary parties who cannot be sued without some legal requirements being met should be avoided till such requirements are met. Where an application for striking out is made to the court after the hearing had already commenced, the court irrespective of the provisions of the rules should discountenance same for the rules of the court are not meant to tie the hands of the court. The court is not a robot.

Source: Barristerng