Authored by Emmanuel Bassey and Jeremiah Aderinto, Associates
Introduction
Most, if not all, civil procedure rules in Nigeria provide that more than one person in whose favour any right to relief is alleged to exist whether jointly or severally may be joined in an action as plaintiffs and judgment may be given to such of them as are entitled to relief. Such persons, when joined together in an action are referred to as "co-plaintiffs".
As a general rule of practice, co-plaintiffs are represented at trial by one counsel or group of counsel who conduct their case on their collective behalf.1 However, sometimes co-plaintiffs may desire to retain separate legal counsel to represent their various interests. Disputes have arisen as to whether such plaintiffs when joined together in an action can maintain separate legal representation.
Can Co-plaintiffs be Represented by Separate Counsel in a Civil Suit?
This issue came up for determination at the Supreme Court in the case of Fadayomi v. Sadipe2 where the Supreme Court stated that co-plaintiffs must act and appear at the trial by the same counsel and if separately employed by the co-plaintiffs must act together. The Supreme Court also stated that there must be no conflict between plaintiffs, they must not sever or take inconsistent steps, nor can one co-plaintiff make an application in the action independently of the other.
The Supreme court was again faced with this issue in the case of Ogolo & Ors v. Fubura & Ors,3 where, per Niki Tobi, J.S.C, it made an authoritative statement of the law on the point thus:
"Where parties have same or similar interest in a matter, they can apply to join as co-plaintiffs and that is proper in our adjectival law. Accordingly, I do not see anything wrong for the 2nd set of plaintiffs to join this suit. The 2nd set of plaintiffs can decide to have the same Counsel with the 1st set of plaintiffs if they so wish I do not see anything wrong with that. There is also nothing wrong for the 2nd set of plaintiffs to retain the services of different Counsel, if they so wish. It is not my understanding of the decision in Fadayomi v. Sadipe (supra) that the co-plaintiffs must retain the same counsel with the original plaintiffs. That will be wrong because parties in litigation have the right to brief counsel of their own choice. The important aspect is that the plaintiffs in the matter (original and co-plaintiffs) must present a common front and a common interest in the presentation of their claims or reliefs. They must, on no account, present opposing interests or opposing claims or reliefs."
The Supreme Court also went on to state that when co-plaintiffs are being represented by different counsel, they are perfectly free to cross-examine each other's witnesses, but the cross-examination must not give rise to the presentation of opposing interests or opposing evidence or opposing claims or reliefs. Counsel on both sides have the right, through discreet and dexterous co-ordination; to cross- examine each other's witnesses with a view to beefing up or improving the common case of the plaintiffs as presented by them because cross-examination is a right available to parties in litigation and it cannot be taken away merely because some plaintiffs have joined others in the case.4
Furthermore, it should be noted that once a person has joined in an action as a co-plaintiff, he has joint liability with his co-plaintiffs as to cost and has no absolute right to withdraw from the action and have his name struck out if he is a necessary party to the action. In a proper case he may apply to have his name struck out as a plaintiff and added as a defendant, subject to the defendant being safeguarded as to costs.5
Conclusion
The conclusion to be drawn from the above judicial authorities regarding the legal representation of co-plaintiffs is that, it is desirable that they are represented by the same counsel. However, if they wish to be represented differently and have briefed separate counsel, they must act together. They should make sure that no conflict of interest or any division of opinion is likely to arise between themselves because as co-plaintiffs, they will not be allowed to sever or take inconsistent steps, and they swim and sink together.
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Footnotes
1. Fidelis Nwadialo, Civil Procedure in Nigeria, 2nd ed. 2000, University of Lagos Press, pg. 148.
2. (1986) LPELR 1223(SC).
3. (2003) LPELR 2310 (SC) (pp. 33-34, paras. E-C). See also Williams v. Nwosu (2001) 3 NWLR (Pt. 700) 376, Re Eke (1993) 4 NWLR (Pt. 286) 176.
4. Ogolo & Ors v. Fubura & Ors (2003) LPELR 2310 (SC).
5. Fadayomi v. Sadipe (1986) LPELR 1223(SC).
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