Civil Procedure

REPRESENTATIVE SUIT

WHAT IS IT?
Rule 8 of Order I1 relates to representative suits. In us, representative suit are called
CLASS ACTIONS. There are two types of representative suits.
i. The suit brought under the provision of Order 1, Rule 8
ii. A relater action

A RELATER ACTION
A relater action is that brought by Attorney General to enforce a public right. It is an
equitable action as not relates in CPC. It is that which is available in court of equity. In
Tanzania, it is available in the High Court in exercise of its equitable jurisdiction. The
attorney General is deemed to be a guardian of all public right; therefore, equity allows
him to sue to enforce public rights, example public right of way (easement).

Relater actions are only within the right of Attorney General; we are categorizing it as a
representative suit because of a reason that Attorney general pursues the action on behalf
of the public at large. A decision made in such an action became binding on all the
members of the public that is why it is called a representative suit.

In relater action, the Attorney General does not have to obtain leave of the court because
we have that right in equity, therefore no preliminary steps to be taken before a relater
action can be taken.

CLASS ACTION
These are representative suit which is under Order 1, Rule 8 of CPC. There are actions or
suits brought by a number of plaintiffs on behalf of a bigger number, class of plaintiff’s.

1
First schedule CPC (Cap 33 R.E 2002)

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Under the Advocate Act, Cap 341, it is only person who are enrolled as Advocate who
have automatic right before the court on behalf of others. But Order 1, Rule 8 is an
exception to the general rule which is found under Advocate Act that a party should
prosecute his case unless represented by advocate.

Remember we are not talking about Order 3, Rule 1 which provides as that any act on
appearance which is done in civil litigation can be taken by the party himself, his
advocate (representative) or his agent.

The presumption of Order 3, Rule 1 is that there is already a case and it does not give a
locus standi but an administrative right, giving summons. It does not give you a right of
audience. So Order 1, Rule 8 is different, it gives a person who holds a representation
order, the right to appear and address the court (right of audience) that rule allows a small
number of plaintiff to sue or sued on behalf of a larger number of people, when they are
interested on the same suit. The controlling close under Order 1, Rule 8 is interested in
the same suit. That is different in interested in subject matter of suit. They should be
interested in the same suit as it has the connection of the cause of action and relief’s. The
subject matter is wider.

In a representative suit, it means you are applying different principles under the principles
of joinder of parties, the potential plaintiff or defendant should have a joint interest, and
not necessary in common interest, although not interested in relief. So in class action they
all have both interested in the same suit, i.e. cause of action.

When several parties are interested in the same suit, in the same suit, the court may give
leave to a smaller number of them to prosecute the same on behalf of others. In Order 1,
Rule 8 CPC it does not provide when the leave of the court should be obtained but simply
stipulate that a court may allow a suit to be defended or prosecuted by a smaller number
of people. As a general rule each party who claims a right or against who acclaims is
made will be bound by a decision of a court only when the court has paid him. However,
in a class action where several people are interested in some suit either as plaintiff or

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defendant the court is allowed at the instance of any of the party to make a representative
order.

WHAT IS A REPRESENTATIVE ORDER

This is an order made by the court under Order 1, Rule 8 allowing one or more parties to
a suit (who are interested in a suit) to prosecute or defend the suit on behalf of a wider
group of persons interested in the same suit. When a representative order is made, a
decision in the suit will bind all those interested in the suit whether they had appeared
before the court or not.

It is a procedure which is intended to shorten the time of litigation. It is a procedure

which is intended to reduce the costs of litigation because the evidence which will be the
same. It is that which is intended to avoid conflicting decision by the court in case several
suits are brought by different person on the same cause of action. But these procedures
must bear in mind two points,

(i) When the representative order is made, the person who is allowed to
prosecute or defend the suit, does it on behalf of all the members of
group and therefore a person who did not appear before a court may be
bound by order made in court he never been prosecuted. All interested
person will be allowed to prosecute the suits so one may find himself
being required to share the cost of the suit in case it is not decided in
favor of the group despite the fact that he never appeared before the
court.

(ii) One may be found to be bound by a decree, he never participate in its

litigations. That is why under Order 1, Rule 8 it is mandatory that
before representation order is made, a notice is issued or published in
the manner in which it will reach as many members of group as
possible informing them that same people are interested in bringing in

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action on behalf of and inviting to raise objections. That notice is

published as expenses of those seeking a representative order.

PURPOSES OF THE NOTICE

(i) To invite all the persons interested in a suit to object or otherwise to

his being represented by those seeking the representation order.
Representative orders are normally issued in labour matters or in
respect of tort.

(ii) A person who does not consent may appear before the court and file
his objection, the objection may be of two types,

a. he may apply to be join as a party himself, in which case he will

be allowed to prosecute his case personal or by involving his
advocate
b. he may want to distance himself from the suit

(iii) it affords all person who may be affected by the decision made in a
suit, an opportunity either to express interest in a suit and its
prosecution or to express their lack of interactivity.

But there is a debate which is going on that at what time do a people go to court to obtain
a representative order? There is a school of thought which says that, “a representative
order must be obtained before the filing of the suit and the prosecute of obtaining it is by
filling a chamber summons, supported by an affidavit. The draft of plaint must be
annexed to the chamber summons.

Order 43, Rule 2 of CPC provides that, every application made in court must be filed or
made by way of Chamber Summons performs two functions,

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(i) It is a document drafted by a party to proceeding known as the

application for his purpose it serves as an application.

(ii) But application is made under Order 11, Rule 8 (1) and any other
enabling provision under the law.

Global Containers Ltd vs THA2, Mihayo, J.

The clause and any other enabling provisions of the law is useless and should not be there
but that clause does not exist as a self value. It is a practice which gain root (over)
through centuries. It is an umbrella clause which invites the court to use its inherent
power. But the enabling provision is Order 1 Rule 8 (1) of CPC. Order;
(a)This Honorable Court may be pleaded to issue a representative order
allowing the applicants here in to file a suit on their own behalf and on
behalf of all those person whose names appears in the list annexed to the
affidavit, annexed hereto in terms of the draft plaint annexed to the
affidavit.
(b)Costs of the application be costs in the suit
(c)Any other orders that the Honorable court may deem fit.

That is in respect a representative order which is to be obtained before the file of the suit.
Order 1, Rule 8 of CPC where there is a numerous person in one suits.
Murdin Ibrahim & 899 others Vs. THA,3 In this case, a representative order was made
after the suit had been instituted. The plaint was filed by 900’s plaintiffs, their names
were cited in plaint and they all signed, but the different is that all their names appeared
in the list of annexed to the plaint except two of them. All two people signed the plaint.
Technically the suit was indication by only two people but there was an indication by
annexing a list of names to the plaint as the names of those people who will be interested
in the suit.

2
Misc Civil Application No. 176 of 2004,
3
Civil Case No. 21 of 2000, (Unreported)

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The question was when did the suit come to be involving those names appeared in list?
The answer was that, they became partly to the suit after the representation order were
interested in the same suit. And the application was made after the file.

Then there is a………………….that the application was made before a filing of a suit,
(made exparte) hence, Murdin’s approach was correct that a representation order is made
after the suit is filed.

That in Wilkson’s case, a suit must exist before representation order is made. The
application to be made as a party to a suit is under Order 1, Rule 8 (2) but the application
to representative order is made under Order 1, Rule 8 (2) of CPC. There is a difference
between Order 1, Rule 8 (2) and Order 1, Rule 10 (2). Must of them relate to adding a
party either plaintiff or defendant but they apply to different circumstance?

Order 1, Rule 8 (2) applies in a situation whereby a suit has been instituted or is depended
on behalf of a person or for the benefit of a person who is not in court. Example, labour
case, instituted by a Trade Union, a trade union institution a suit of redundancy on behalf
of its members. In such a situation members are not cited in a suit, but wider a trade
union can litigate on behalf of members.

At the same time, one of its members may be interested in pursuing his right persons; he
may make an application under Order 1, Rule 8(2). The requirement for the use of Order
1, Rule 8(2) that there must have been instituted a suit for the benefit of a person who is
not in court who may result a decision against a person who is not in court.

Order 1, Rule 10 of CPC deals with a different situation under this order; the court may
act on its own motion (suo motto) or on the application of other party unlike under Order
1, Rule 8 (2), where the court must be moved by an interest party. Under Order 1, Rule 10
(2) the court may act at any stage of proceedings, i.e. at any stage before judgment. The
court makes the order to add or substitute a party on terms and conditions imposed made
by courts, e.g. Those relates to courts and pleadings.

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This depends on the circumstances of the case, Order 1, Rule 8 (2) the court has no rights
to impose its conditions but it is the right of the party to prosecute his case. This implies
that application is made at the early stage of the suit. Under Order 1, Rule 8 (2) the court
in exercising its powers should be satisfied that the suit has been instituted for the benefit
or on behalf of the applicant or it is being depended for the benefit or on behalf of the
applicant.

Under Order 1, Rule 10 (2) on the other hand, it is not a question of whether a suit is of
the benefit or on behalf of the applicant. There are court should be satisfied that the
presence of the applicant in the suit is necessary for determination of real question in
controversy (for settlement of disputes finally and conclusive)

CASE LAW IN RELATION TO ORDER 1, RULE 10 READ TOGETHER

WITH ORDER 1, RULE 9 OF CPC

Order 1, Rule 9, provide that, no suit shall be defeated by reason of non-joinder or mis-
joinder of parties only but unless there are other reasons the court may deal with matters
of the party who are before it. When we look a non- joinder or mis- joinder of parties
Order 1, Rule 10 also apply. It allows a court to strike out a name of wrong plaintiff but in
exercising this power must be satisfied that the name of wrong plaintiff was brought into
the suit although a Bonafide mistake.

Remember; although under that Order 1, Rule 10 (1) a court may add or substitute a
plaintiff, it can not order who has to a plaintiff. A suit will exist in court but the court will
strike out the name of the plaintiff who is wrongly placed through bonafide mistake and
substitute the proper plaintiff. So, Order 1, Rule 10 (1) deals plaintiff but Rule 10 (2) is
wider which relates to striking and adding or substituting off a proper plaintiff. It is also a
way of correcting problem of non-joinder and mis-joinder of plaintiff.

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Hassanali Somji & Rajan Vs Kishan Singh4 A plaintiff instituted a suit for rejection of
tenants from a house. The house was registered in the name of his wife but he was the
manager, i.e. wife was a land lady and the contract was between the wife and tenants. In
this case, there was no evidence that the plaintiff had power of attorney. All these facts
were discovered in cross- examination where he was admitted that he was not the owner
of the house. The issue was whether the wife could be brought now to substitute for him
as the plaintiff?

Held: if there was a genuine mistake, which made the husband to institute a case without
power of attorney then Order 1, Rule 10(2) shall apply or can be used.

That authority was accepted in the case of Lombard Banking Kenya Ltd Vs Shah
Bhaijhand Bhagwaji 5 The rationale of such approach was given in this case, that it is
more just to allow the amendment of the plaintiff by substituting the plaintiff rather than
striking out the suit burden the parties with costs and the plaintiff may be timer barred.
The law of limitation may bar a plaintiff from instituting a fresh suit.

The rule allowing a fresh suit substitution of the plaintiff (under the case law) under
Order 1, Rule 10 (2) shall be read together with Order 1, Rule 10 (3) which provided that
no person shall be address as plaintiff suing without a nest friend or suing with a next
friend without his consent.

That rule was interpreted in that case of Lombard Banking Kenya Ltd Vs Shah
Bhaijhand Bhagwaji.6 The Judge stated as follows,
” if is of course obvious that a plaintiff is in a different position from a defendant while a
defendant may be joined as a party without his consent no person ought to be compelled
to bring an action without his consent and it seems clear, therefore, that in the absence of
the consent of proposed plaintiff as required under Rule 10(3) the proposed substitution
can not be made”

4
(1944) vol XXX1 Part 1, KLR 29
5
(1969) E.A 909
6
(1969) E.A 909

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a similar position as the position in Lombards case in respect of adding or substituting

defendant in a suit in tort, a defendant can not be added to the suit even if he is willing.
He cannot be joined if the plaintiff does not consent, because a suit in tort is a suit in
personum as you want to stick liability to a particular person.

The position was taken in the case of Santana Fernandes Vs Kara Arjan & Sons & 2
Others7 the case was interpreted Order 1, Rule 10 (2), it said that, the rule which allows
the court at any stage of the proceedings either in application or without application from
either party on those terms as it deems fit to strike out the same of the party wrongly
joined and allows substitution of the proper applies both to defendant and plaintiff.

Note:
Order 1, Rule 10 enact discretionary power of the court top add or substitute or remove a
party from a suit. They are judiciary power where by the interest is to shorten the time of
litigation and to reduce the cost of litigation. But there is also basic consideration which
the court has to keep in mind that is whether the joinder will assist in having an effective
decision on the disputes at hand. We don’t joint for the seek of joining but in order to
have effective decree against a necessary party who was not joining.

The reason why the court uses its decision power in adding the party, it will ask itself
whether the decision of the court will affect the party and it must be an adverse effect. An
application to be joined or to be joined in a suit or to be removed from a suit is normally
done at the instance of interested party because the court is in no position to know
whether a person who is not impleaded in the court will be affected by the decision.
Refers, 21 Century’s case,

There is one principle of justice that no person should be condemned unheard (Audi
Aulteram Partem) and therefore where a decision is going to affect a person adversely,

7
(1961) EA 693

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this person should be a party to a suit and should be given an opportunity to explain
himself before a court given a decision.

In such a situation the discretion of the court should be invariably to exercise in favour of
the party. This can be also seen in the case of 21st Century’s case

COMPARE BETWEEN ORDER 1, RULE 10 (1) AND ORDER 1, RULE 10 (2)

They are different in their application, Rule 10(1) envisage a situation whereby a court
will act on defendant objection, where a person who moves to the court is defendant. The
court has no position to know whether he is a proper plaintiff or not. The court must be
moved by either defendant or plaintiff where there more than one plaintiff. Always the
court must be moved cannot act on its own.

Rule 10(2) is wider; the court may act on its own motion or may be moved by an
interested person. It can look on the plaint and Written Statement of Defense and make its
own decision. By also can be moved by another person. When the court is moved to order
to addition or substitution, it must be third party who was………..because the defendant
he has his own way of bringing.

Although Rule 10 (2) is wider than Rule 10 (1) in its operation, always remember that
plaintiff cannot be compel to sue defendant who does not want to sue, therefore a person
can not make an application. Also remember that, the plaintiff is always in total control as
to who he should sue and he has an absolutely right to waive his right to sue.

Santana’s case.
That the case emphasis that point hew, say, “a plaintiff being a dominos litis can not be
compel to sue a person for damages in respect of a tort when he does not wish to sue, he
is the injury person, the one who is complainant. Therefore he has the right to sue and
waive the right to sue.

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Both Rule 10 (1) and (2) give the court the power to remove a party to the proceedings
but one thing should be bare in mind always the power to remove the party to the
proceedings it only when the court in satisfied intact. Whereby removing a party, a nature
to a suit will substantially change the court should be that power.

Daphe Parry Vs Murray Alexander Carsson 8 Plaintiff sued the defendant for 2,625/=
she claims that, the defendant was holding that money in trust for her. Defendant made an
application to the court to have his name dismissed / removed from the suit and his place
the name of the official receiver being brought in as defendant. Order 1, Rule 10 (2) to
substitute the defendant, he use his power. The issue was obliged to be holding money for
the plaintiff and substituting the official receiver would leave the suit intact.

Wintham J. had interpreting Order 1, Rule 10 (2), “the Rule is concerned with parties
whom had being wrongly jointly or added to join in court or to add in court a party is not
sinuous to making a person a party is not joined or added presupposes a co-defendant or
co-plaintiff to whom a defendant or plaintiff is sought to be joined or added such is not a
case, where as straight substation suit for a one soul defendant is being sought, the results
of which would be the complete disposal of a suit at a present frame.”

Order 1, Rule 10 (2) should not be employed where there is a soul party; it concerned
addition of parties or joined of parties. If the suit will not remain intact, the court will
make an order or substitution. Therefore, where will be brought into pray only when the
addition or substitution will not have an effect of removing a party from the suit.

Where a defendant is added, then the rule of natural justice must be followed. He must be
given an opportunity to be heard, Order 1, Rule 10 (4). The court should direct the
amendment of the plaint so that he can answer it

You cannot employer the power of the court to add a defendant or substitute a defendant
to defeat the Law of Limitation. Example, suing in tort, under the law of Limitation Act,

8
(1962) E.A 515

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1971, law of tort is three years (3), civil cases is 6 years. That is the meaning of Order 1,
Rule 10 (5) that when a new defendant is added in a suit or where there is a substation of
a defendant, the law of limitation act is not defeated or affected.

The parties are the master’s of their own cases we are pursuing the principles of the
parties prosecution and parties presentation; we are operating under the law of ignorance.
It is the parties who decide what time, procedure. Although there are master of their case,
but the court is the master of the procedure. That the court has to regulate the procedure;
hence the concept of the court to be an umpire, a referee of a football matches.

That position is illustrated, all the rules relate to joinder addition or substitution of the
power are discretionary, and they permit the court but do not compel the court to make it.
The parties decide to join or not but the court has to regulate the procedure. It is of the
opinion that, the suit will be enlarge to such an extend that the parties will fail to
prosecute their case and the court will also fail to appreciate the evidence.

Therefore, the law allows the court to determine how the trial should be conducted. Order
1, Rule 2 relates to situation where several plaintiffs joined the operation of Order 1, Rule
1, which allows the joinder of plaintiff is subject of court power to direct the separate trial
should be conduct in respect of different plaintiff. That power or discretion is examined
when is satisfied that having single suit will embarrass defendant or will delay the fair
conclusion of a defendant. The defendant is embarrassed when he is not organized or
conducted his suit or defence. That is the operation of Order 1, Rule 10 (2)

The conduct of a suit, where there is a several parties where there are defendants or
plaintiff covered by Order 1, rule 11. Where there are the assumption is that, they are
going to use the same evidence, the issue of law involving case, will be the same. The
court has the discretion to grant the conduct of a suit to one of few of the parties, others
will come as witnesses.

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For the better conduct of the trial and as to save time of the court, Order 1, Rule 11 may
be invoked by the court to give the conduct of the suit to a smaller number of the parties
that the actually number of a suit. A distinction between Order 1, Rule 11 and Order 1,
Rule 8 is that where a representative order is made, it relates to ……… the rest of the
group.

Rule 11, no representative order rather all parties will be in court only for the purposes of
conducting the suit as it is. It is not a representative suit. Where several parties are sued or
suing jointly it is not necessary that the judgment which is going to be issued is going to
be favour of all or against all. A joint decision is not necessary to lead into a joint
decision, Order 1, Rule 4. Judgment may be pronounced in favour of smaller number of
plaintiff who is against………likewise, judgment may be pronounced against defendant
who has been in court depends on the evidence has been produced.

Order 1, Rule 11 should be constructed together with Order 1, Rule 12 but Order 1, Rule
11 presuppose a court order, Order 1, Rule 12. On other hand, relates to the rights to the
parties to allow some of them to appear on behalf of all, plead and conduct appear, on
behalf of the rest. That rule presupposes the existence of a joint action. Where
the……………..joint parties have a right to appoint a smaller number of them to appear
before the court and act on behalf of all the parties. They have a right to choose either to
appae4r as a group or smaller number. That must be done in written.

Order 1, Rule 12 differentiates with Order 3, Rule 1 the appointment. All acts can be
made by a party himself, advocate or recognized agent. Who is recognized agent? Order
3 is that person who holds power of attorney to another. A party donates a power of
attorney to another person. He holds a letter for appointment.

Two types of power of attorney

i. Special Power of Attorney: Those which constitute for specific purpose
only. Normally, they expire as soon as that purpose is service.

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ii. General power of Attorney: Constitute for all purpose he has the right to
appear before the court and not right to address the court. Has no right of
audience. Right of locus standi necessary not only the right to appear but
also the right to appear and address the court, conduct the case.

 He can sign summons

 He can sign plaint
 He can sign pleadings to
 He cannot present argument before the court
 He can do all ministerial activities before the court but nothing else.

A person appointed under Order 1, Rule 12 is not an attorney, or agent he is not hold of a
power of attorney. To be appointed Order 1, Rule 12 to conduct a suit, you must be party
to the proceeding. Whatever he does, it will bind the other

OBJECTION OF MIS- JOINDER OR NON- JOINDER

Order 1, Rule 13 are procedural matters, they are non- jurisdictional matters, meaning
that, the jurisdiction of the court to entertained the suit is not affected by a mis- joinder or
non- joinder of parties. Order 1, Rule 9, the power to determined the issue who are before
it, mis-joinder or non- joinder may not defeat the suit.

Rule 9 must relates together with Rule 13, that party who feels that there is a non- joinder
or mis- joinder should raise that objection at the earliest possible opportunity and in any
case not after the issue are flamed, under Order 14, or the hearing of the case. They are
flamed at the hearing.

Order 1, rule 15 by that time, issued flamed Order 14 all preliminary objection relating to
mis- joinder or non – joinder should have been determined.

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Reasons:
The parties and the court should be heard at ransom, who will be rising issuing of mis-
joinder or non- joinder at the very late stage. And when pleading would have been closed,
issued are flamed after the pleading have been closed. Therefore allows objection are
raised on the mis- joinder or non- joinder we entertained the opening of the pleadings, the
conclusion of the suit.

Rule 13 raise one presumption that is, if the objection of mis- joinder or non- joinder is
not taken at earlier opportunity, then the party who is entitled to raise it is deemed to have
waive the right to raise it.

In adversarial system, the parties are the masters of their own procedure, meaning the
procedure to take and at what time. The court can not compel them to what procedure to
take and at what time. The court is only there to make sure that the procedure is taken in a
proper way.

The court, they are there the regulator of these procedure, Order 1, Rule 13. A party who
desire to raise an objection on mis- joinder and non- joinder…..shall be taken at the
earliest possible opportunity and in all cases where issues are settled at or before such
settlement unless the ground of objection has subsequently arisen and any such objection
not so taken shall be deemed to have been waived.

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