Answered by: Kimario Joseph
College: St Augustine university of Tanzania
Programme: LLB
Year of study: III
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TABLE OF THE CONTENTS
1.0: INTRODUCTION
1.1: The concept of parties to the suit.
1.2: Meaning of Joinder of parties and Representative suit
2.0: MAIN BODY
2.1: The Similarities between Joinder of parties and Representative suit..
2.2: Differences between Joinder of parties and Representative parties.
3.0: CONCLUSION
REFERENCE.
1.0: INTRODUCTION
1.1: The concept of parties to the suit.
In a general rule, in any civil suit there must be two parties to a suit. These parties are the plaintiff and the defendant[1]. The general principle is that a plaintiff should be the person who is directly claiming a right against another, or who is claiming directly under him. Such right is not merely a moral right rather a legal right in law. On the other hand, a defendant is a person against whom a right in law is claimed.
In a civil litigation, it is for the plaintiff to prosecute the case while the defendant has to defend the case as against the plaintiff. For instance if A is claiming against B and that the former has instituted a civil case in a court against the latter, then A becomes the plaintiff who is prosecuting the case against B who is the defendant defending the case against A.
1.2: Meaning of Joinder of parties and Representative suit
Within the concept of parties to the suit there arises the concept of Joinder of parties and Representatives. No one can be compelled to join as a plaintiff in one suit with another person. However the law provide for those who can sue or be sued jointly. Order I Rule 1 and 3 provide for who can be joined as plaintiffs in one suit, and who can be joined as defendants in a suit respectively. It follows therefore that the joinder of parties is permissive however, it is not mandatory[2].
In deciding whether to join plaintiff or defendants one has to look on the cause of action. This implies that, when talking of joinder of parties, there is a connection between Order I and Order II which relates to the joinder of cause of action. In fact, no where in the Civil Procedure Code[3] where there is an express definition of a cause in action. But in the cause of practice, it is commonly known as the legal complaint raised by the plaintiff against the defendant and it comprises all the facts which are asserted by the plaintiff and denied by the defendant. All these facts have to be proved by the plaintiff in order to make him be entitled to relief.
Under Order I Rule 1, all persons may be joined in one suit as plaintiffs where any of such persons has a right to relief arising out of the same act or transaction or series of acts or transactions and where it is proven that if separate suit were brought, common question of law or fact would rise.
It is in the interests of the republic that litigation must come to an end, and that good administration of justice is not interested in the multiplicity of suit. Multiplicity of suits weaken the society because more time will be spent in litigation than in production and further will create possibility of having conflicting decisions by the same court or different courts on the same facts and same law.
Therefore in joinder of parties, the law creates a favourable condition where the same evidence which is going to be adduced by the plaintiff against several defendants or by defendant as against the plaintiff, to be jointly used in prosecuting or defending a case.
It has to be noted however that there are basically two requirements as to the joinder of parties to be possible. That is there must be a right to relief which has to be legal right and not moral right. This legal right must arise out of the same act or transaction or series of acts or transactions. It is not necessarily that the parties joined should have the same relief or common relief claimed against the defendant. What is important is that such claims arise out of the same act or transaction.
The other requirement is that, one should establish that, if separate suits were brought either by the several plaintiffs against several defendants, then common question of law would arise. This was stated in the case of STROUD V LAWSON[4] where the court stated that on determining the issue of whether to join the parties in one suit, the common question of facts is looked upon the evidence which will be required in proving the different suits by different parties or against the different parties or defendants if separate suits were brought.
On the other hand, Representative suit is a suit in which a small group of persons are allowed to institute a suit and prosecute it on their own behalf and on behalf of others who are not in the court. Where the court pronounces its decision, then it binds all who are in and those not in the court. In U.S.A this is termed as group action. It happens where there is a group which intends to pursue group interests. Such suits can not be instituted without court issuing the court Representative order.
In order for a court to issue a representation order, it has to be satisfied itself that there is a joint interest among the members of the group. The law regarding representative suit is provided under Order I Rule 8 of the Civil Procedure Code. And as it was stated in the case of DAUDA ABDULLAH V AHMED SULEIMAN[5] where the Court when interpreting the provisions of Order I Rule 8 of the Kenyan Civil Procedure Code which is in pari materia with the same provision under the Tanzanian Civil Procedure Code, had this to say;
“We have to consider the language of Order I Rule 8 and be guided by it and not attempt to extend or limit what according to its natural construction appears to be ambit of the rules. The rule authorizes the bringing of a representative action only where there are numerous persons having the same interest in the suit. It says nothing whatsoever about suits founded in contract or in tort or any other kind of suit. The sole test is whether the plaintiffs and persons whom they claim to represent have the same interest”
Therefore, in the light of the above authority[6], a representative suit does not depend upon the nature of suit. A representative suit depends upon the existence of the joint interest in the suit by those seeking to represent others and those to be represented. In actual fact when the court is considering a representative suit it has to take into account whether there is a common interest among the parties and whether they have common grievance[7].
2.0: MAIN BODY
The center of this work requires a discussion on the similarities and differences of the Joinder of parties and Representative suit. These can be discussed here below as follows;
2.1: The Similarities between Joinder of parties and Representative suit..
The two resemble in the sense that when separate suits are filed, common questions of law and facts would arise. This is as per Order I Rule 1&3 of the Civil Procedure Code for the case of joinder of parties.
Both save time of the court. This is inline with the maxim that it is in the interests of the republic that litigation should come to a speed end. Institution of separate suits may cost the court the time to hear and determine all such suits which in actual sense do have connection to one another at the same time on the part of representative suit, representation of so many parties to a suit where all such parties do have common interest and common grievance will cost the court time to hear all such parties with common interests.
They are all aimed at avoiding multiplicity of cases. That is in case of representative suit, instead of each party coming before a court suing on the different cases with same facts and common interests; they are all represented by in a single case with common grievance. Similar to the joinder of parties where the parties instead of suing their cases differently, they are joined in a single suit to avoid multiplicity of cases.
Again both save the purpose of maintaining the confidence of the court, which is to reach a common decision in such suits of the same facts. This implies that it is in the interests of justice that decisions of the same court on the cases of same facts should be certain and consistent.
In both Joinder of parties and Representative suit, the doctrine of Res Judicata applies. This is the doctrine[8] which means that no court shall try a suit whose subject matter is substantially and directly the same as the subject matter which was tried in another suit. No case which has been instituted either in Joinder of parties or in representative suit can be re-instituted after having been determined by a competent court which has pronounced the decision thereof. Parties to the suit have to take that as a decision given by a competent court.
2.2: Differences between Joinder of parties and Representative parties.
The two concepts have some aspects of differences. These can be discussed as follows herein below;
That in Joinder of parties a claim and relief from each of the party may be different depending on their causes of action even though such claims have arisen out of the same act or transaction or series of acts or transactions while on the other side in Representative suit, claim and relief shall be the same because the parties will be having common interests and common grievance in a suit.
Again in Joinder of parties judgment pronounced may bind in different ways some of the parties depending on in whose judgment is given in favour in each cause of action while in Representative suit the judgment bind the parties in the same manner. This is because in a Joinder of parties the parties though having claims arising out of the same act or transaction or series of acts or transactions, yet the judgment will vary depending on the claim of each party on its cause of action, while in the Representative suit, all the parties will be having common interests and common grievance and hence judgment pronounced will be binding the same way to all.
Also in Joinder of parties causes of action may be more than one but having occurred in the same act or transaction or series of acts or transactions but in Representative suit, there must be common interests and common grievance on all the parties represented in a suit.
In recording the names, for Joinder of parties all the names will appear due to the fact that these parties will be having various causes of action which have arisen out of the same act or transaction while in Representative suit, the one who is appointed to represent others is the one whose name will appear in records even though the judgment passed will bind all the other parties represented.
Further, in Joinder of parties any party can argue and prosecute or defend his case while in Representative suit only a representing party can argue and prosecute a case. This is in the reason that in Joinder of parties, such parties may be having different causes of action which have arisen at the same act or transaction but each of them demanding relief of his own while in Representative suit the parties will be having the same cause of action only that they are represented by an appointed party to that case.
Representative suit is mainly in respect of plaintiffs only and not defendants while Joinder of parties is in respect with both plaintiffs and defendants. This is due to the fact that the practice of the court is that Representative suit is granted at the time of instituting a case while Joinder of parties may even occur after the institution of a case.
In Joinder of parties different from Representative suit, there is conflict of interests between the parties so joined in a suit and which sometimes may result into the distortion of one party’s evidence due to the evidence given by the other party while defending his claim, on the other side that is not the case in Representative suit since the evidence adduced shall be directed towards the common interests of the parties and common grievance. In other words, the plaintiffs will be joining their efforts towards attacking their common enemy as stated by Jessel, MR in THE COMMISSIONER OF SEWERS OF THE CITY OF LONDON V GELLATTY[9], where he stated;
“All persons having a common right which is invaded by a common enemy although they may have different rights inter-se are entitled to join in attacking that common enemy in respect of a common right”.(emphasis is mine)
In Joinder of parties any party can be added or struck out at any time of proceedings[10] while in Representative suit that can not happen. This is as per Order I Rule 10(2) which provides that the court upon application of either party to the suit or on such terms which may appear before the court to be just, may order the name of any party improperly joined whether a plaintiff or defendant, be struck out.
In the Case of YOWANA KAHERE AND OTHERS V BUNYO ESTATE LTD[11] eight plaintiffs were suing a common landlord. Their landlord had given them a notice to quit the land which they had occupied in different portions in that landlord’s land. They were not tenants in common. They joined one action some claimed that they had unlawfully evicted, and their building and crops had been destroyed. Others were still in possession of the land but claimed that their building and crops had been destroyed. The eight plaintiff sued in one suit. The issue was whether they had been properly joined.
The court answered that question in a negative way and had this to say;
“It is necessary for joinder of parties that these conditions should be fulfilled that is to say, that the right to relief alleged to exist in each plaintiff should be in respect of or arise out of the same transaction and also that there should be the common question of fact or law in order that the case may be within the rule”.
It follows therefore that, in the above case the parties were found to be improperly joined and hence struck out.
3.0: CONCLUSION.
To conclude this work it is better to point once again that though the two concepts seem to be similar in one way or another, on the other side Joinder of parties and Representative suit are different in terms of the way they operate and their effects thereto. However both are aimed at maintaining the maxim that it is in the interests of the republic that litigation should come to a speed end.
REFERENCES
1. Penal code cap 16 R.E 2002
2. Lecture notes on criminal law distributed to llb students at Moshi cooperative university
Citations
[1] These parties are further categorized into necessary party(which refer to that party whose presence in court is necessary for the purpose of issuing an effective decree) and proper party(which refer to that party whose presence in the court is dispensable, that is its presence is not necessary for the court to issue an effective decree, but whose presence is important)
[2] This is in the fact that, where the court is of the view that joining of the parties would embarrass or delay the trial may put the plaintiffs to their election or order separate trials or make such other order as may be expedient. This is as per Order I Rule 2.
[3] Cap 33 R.E.2002
[4] [1898]2Q.B.44,52
[5] [1946]13EACA 321
[6] DAUDA ABDULLAH’s Casesupra followed an English case of the DUKE OF BEDFORD V ELLIS&OTHERS[1901]AC 7 which is one of the leading cases in Representative suit. In the latter case, Lord McNaughten, J, had this to say;
In considering whether the representative action is maintainable you have to consider what is common to the class and not what differentiate the cases of individual members… for the sake of convenience, it was a right given to a common interest and common grievance…
[7] In the case of MARK&CO LTD V KNIGHT S.J.CO LTD[1910]2KB 1021 the court said that there are three requirements which the court must be satisfied with and those are; all members of the alleged class in a representative suit must have a common interest; all members must have the common grievance; and the relief to be given in such a suit must be beneficial to all.
[8] It is provided under Section 9 of the Civil Procedure Code. And it was discussed its elements in the case of KARSAN V BROGHA [1953]20EACA 74.
[9] [1876]3Ch.D 610,615.
[10] This was discussed in the case of HORWOOD V STATESMAN PUBLISHING CO.LTD(1929)1LTR 59 at 57 where the court stated that;
“…you should include all parties in one action subject to the discretion of the court if that inclusion is embarrassing to strike out one or more of the parties…”
[11] [1959]EA 319
