Chapter Three

Parties to and Dimension of Suits

Who are Parties to Suit?

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 Parties to a Civil Suit: General Requirements

• Parties to a civil suit known to be;

o plaintiff and defendant under first instance jurisdiction,
and
o under appellate jurisdiction called appellant and
respondent.
• Plaintiff - a party who makes an allegation & initiates
proceedings before court,
• Defendant - a person subject to a claim or a party
against whom a claim is filed.

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 But who can be a party plaintiff or and
defendant? Common Requirement (art.33/1/
of civ.pro.co)

• A common requirement to a party plaintiff, party

defendant, intervener, third party defendant, is a
capacity.
• It refers to power or ability to perform juridical act/a
party to a suit.
• Capacity in civil litigation implies to an individual’s
ability to represent his interest in a law- suit without the
assistance of another.
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 Cont’d….

• The rule under this law refers to persons who lack

personal qualification or capacity & can not be
parties/can not be sued or be sued on their own
behalf.
• Principally every person is capable under art.192 &
196 of ci.co.
• But disability can be resulted from general and
special sources of incapacity.

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 Cont’d….

General source of Special sources of

incapacity /art.193 incapacity/art.194
o This is due to physical or o This is due to the status or
psychological conditions. special function of a person.
o Include minors, insane and o Example, agents (see
infirm persons and persons art.63 /status of being a
subject to sentence and pleader/ of civil procedure
deprived of some of their code).
civil rights.

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  Thus,

• Unless law declares persons as incapable, every

person is presumed capable to perform juridical acts.
• Thus, every person can be a party to a civil suit.
• So what is the fate of incapable a persons?
 See art.34 sub-1 of civil procedure code a legal
representation.

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 Special requirement: A Party Plaintiff; Vested
Interest /art.33/2/
• Vested interest refers to possession of a right required
to be enforced under the governing substantive law.
• Since civil suits refer to individuals right vested
interest is attached as prerequisite.
• Vested interest is equated with the right of action or
legal right forwarded by facts relied upon by the
plaintiff/cause of action.
 What if there is no vested interest?

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 Consequences for Lack of vested interest?

• The result is based on objection raised by opponent

party and nature of the parties;
• Unqualified party /244/2/(d), by defendant there by
court may order substitution or addition of a party as
a plaintiff (art.40 of civil procedure).

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 Party Defendant: allegations
/art.33/3/ civ.proce.co./
• This is called relief/ see art.224 of civ.pro/
• A person sued must be the one responsible for the
wrongs committed and claims arising therefrom.
• Thus, a plaintiff should state or show the claim he/she
is demanding against a defendant.

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 How to Plead? Representation

• Is to mean to represent real parties to a suit.

• As you can understood from art.63 of ci. pro. Co.
representation is a principle.
• A court may order appearance of parties in certain
circumstances.
• There are two classes of representation;
1. representation for interest of others, and
2. representation for own interest and interest of others.

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 Representation for interest of others: Legal
Representation
• This is a representation under art.34 of civ. pro. code.
• A legal representative represents persons under
incapacity because they cannot be parties to civil suits
to protect their interest.

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 Representation for own interest & interest of
others: Representative Class Suits
• This kind of representation is allowed pursuant to
article 38 of civil procedure code.
• It is allowed because a suit involves several
persons and that it is inconvenient for all to be
parties in terms of expeditious and economic
justice.
• However there are requirements for representation
class suit.
What re these requirements?

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 Requirements for Representation class suit

• The requirements for this representation to apply are

that;
1) the parties should have the same interest in a suit;
2) they agree to be represented; and
3) the number of parties is more than two since the
provision demands the number of parties to be
several.

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 What is same interest?

• There is no definition given to the term under the

code.
• All the members of a group to be represented have a
common interest or a common grievance, and the
relief they demand is beneficial to them all.
• But it does not mean that the claim of parties has a
single cause or that it arises from the same transaction
only.

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 Cont’d…..
• It means that as plaintiffs, they must demand the
same relief against the defendant for the same wrong
committed against all of them; as defendants they
must be invoking the same defense against the
plaintiff on the same cause of action.
• Thus, same interest means some thing more than
same cause of action (same transaction).

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 Instances;

• Cases against administrative decisions, labor cases

etc.

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Agents and Pleaders /art.57 of civil procedure
code/
• The requirement is that such representatives are able
to answer all the material questions relating to a suit.
• Refers to a person authorized by operation of law to
act on behalf of a party to a suit.
• A pleader is a person who holds an advocate’s
license, and no person may appear in this capacity
unless he holds such a license.

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Cont’d….

• A pleader has to produce his license together with a

letter of authorization from a person who authorized
him.

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 Joinder of Parties and Causes of Action

• Multiplication of parties & causes of action.

• How two or more plaintiffs bring action against a
single or more defendants, & how many causes of
actions can be made subject to a single suit.

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 Joinder: Advantage and disadvantage

• It is helpful to pool their resources together and

enables them to share costs of pursuing a suit.
• It also relieves a burden of court to resolve cases
involving many persons or causes of action by a
single suit.
• It avoids the possibility of making conflicting
decisions.

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 Cont’d….. disadvantage

• It expands the scope of litigation and consequently

causes delay of proceedings.
• It results in embarrassment of the defendant and
makes him not to be able to properly defend himself.

 Article 221 of the Civil Procedure Code tries to

strike a balance between these two conflicting
interests toward joinder.

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 Forms and Types of Joinder of Parties
• Joinder of parties appears in different forms,
1) Two or more plaintiffs (which is known as joinder of
plaintiffs) bring action against a single defendant; or
2) A single plaintiff brings action against two or more
defendants (joinder of defendants); or
3) Two or more plaintiffs file a suit against two or more
defendants (joinder of plaintiffs and joinder of
defendants).

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 Cont’d…..

• Beyond that there are two types of joinder of parties,

namely;
1. Permissive joinder, and
2. Mandatory joinder.

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 Permissive joinder /see art.35 of civ. pro/

• For joinder of plaintiffs in a civil suit two

requirements are describe;
1. the right to relief must arise from the same
transaction whether jointly, severally or in the
alternative, and
2. there is a common question of law or fact that would
arise if such persons made separate suits.

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 the same transaction Cont’d…..

• the claims of persons to join must be related in the

sense that they should arise from the same source.
• The parties may claim different remedies but the
source of claim must be similar.
• In short terms it is to mean a series of acts that cause
damage to some person.

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 a common question of law or fact Cont’d…..

• All the parties share at least one common litigation

interest in the form of an issue of law or fact.
• It refers to those questions of law or fact arising out
of the claims in a particular case before the court.

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 Joinder of defendants /see art.36 of civil
procedure/
• refers to a situation where two or more persons are
jointly sued by a single or more plaintiffs.
• Unlike joinder of plaintiffs there is one requirement
that applies to the joinder of defendants, a common
question of law or fact.

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 Effect of Misjoinder and Non-Joinder of
Parties /see rt.39 of civil procedue/
• Under a permissive joinder, mis-joinder or non-joinder
does not result in the defeat of case.
• If a party is not joined or is improperly joined, the
appropriate measure is to drop a party improperly
joined and demand substitution, and proceed with the
parties before a court.
• If there is improper joinder of defendants, the
plaintiff should be given option to drop the
defendants improperly joinded or to proceed with
separate suits.
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 Mandatory Joinder/ joinder of indispensable
parties/
• Parties are under obligation to bring a joint action or
defense.
• There is no choice given to parties other than a joint
action or defense.
• It applies to certain categories of persons required by
substantive law to exercise their rights jointly at a
time /example- joint owners, joint creditors or
debtors, husband and wife over common property/.

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 Cont’d….

• The interest and claim belongs to all of them and not

to one of them only.
• The absence of one will necessarily affect one’s right,
that is why they are considered to be indispensable
party.
• The other category comprises of those who can be
affected by a decision given in their absence, as a
solution oppose a decision as per art.358 of civil
procedure code.

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 Consequence if there is non- joinder of an
indispensable party
• For defendant- the court shall order the joinder of
such party, by issuing summon on him (art.39 and
40/2/).
• In non-joinder of an indispensible party plaintiff- no
clear provision.

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 Joinder of Causes of Action: Definition

• Refers to facts or occurrences that give rise to a claim

for relief without particular reference to the
substantive law to be applied, or the nature of relief
sought.
• Parties are allowed to join as many causes of action
as possible so long as joining of causes does not bring
about delay of proceeding or embarrassment to a
defendant.
• Parties are allowed to join even unrelated claims /see
art.217 of civil procedure code/.
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 Cont’d….

• The exception to this rule is provided under art.218

and art.219.
• A single plaintiff or plaintiffs with a joint interest may
unite any number of claims against the same
defendant or the same defendants jointly, so far as the
joinder does not result in delay of considering a case
or an embarrassment to defendant. (See, Art 221 of
Cv. Pr. C)

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 Interventions: Conditions and Types

• This is a mechanism by which a party is brought into

a pending case to present a claim or defense.
• It is different from joinder of parties because joinder
is an issue that comes at the beginning of a suit, while
intervention is a question that comes after a suit
undergoes some steps.

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 Types of intervention
• There are two types of interventions,
1. by an application of a third party himself, and
2. As of obligation.

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 by an application of a third party himself /see
art.41 of cv.pro./
• A party who wants to intervene shall
1. File a written application in which he is expected to
state reasons justifying his intervention,
2. The application shall be filed at any time before a
decision is given, and
3. The party must be interested in suit between other
parties.

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 Cont’d….
• Since intervention widens the dimension of a dispute
and causes delay of proceedings court should also
take into account the need to settle a case involving
many persons by a single decision.

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 Effect of Intervention

• An application for intervention is granted,

proceedings are suspended until the original parties
have been served with a copy of the statement of a
party who is allowed to intervene.
• The effect intervention produces is that a decision
given on a case also binds the intervener.
• What if an application for intervention is rejected?
No clear provision but FSCCB decides one case.

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 As of obligation: by public prosecutor /see
art.41 of cv. pro./
• Public Prosecutor is under obligation to intervene, if
parties concerned in such types of suit have initiated a
suit.
• Substantive law prescribes all of the cases demanding
the intervention of the Public Prosecutor, civil status,
incapacity, marriage and bankruptcy cases.

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 Third-Party Practice [Impleader]

• Is a procedural device enabling the defendant in a

lawsuit to bring into a suit an additional party who
may be liable for all or part of the original plaintiff’s
claim against the defendant.
• It is a mechanism by which a defendant brings into a
suit a third party on the ground that such third party
covers or shares the whole or part of claim of
plaintiff.

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 Purpose

• To settle claims involving the same cause of action/

transaction in a single suit.
• Avoiding separate suits over the same cause of
action/transaction.
 Thus, a defendant who has a claim against a third
party does not need to bring a subsequent suit against
him.

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 Requirements for Third party practice
• The requirement are;
 the defendant shall demand a court for the third party
practice in his statement of defense, in his
application, the defendant is supposed to indicate the
reasons why he demands the intervention of the third
party.
 the defendant should mention the extent of
contribution or indemnity to be made or covered by
such third party.

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 What’s next?

• If the requirements are fulfilled, court issues summon

on the third party together with a copy of the
statement of claim and the statement of defense and
require him to appear at a fixed date.
• Once he is ordered to be a party, he proceeds like a
defendant in a normal action, he/she can make a
counter claim or set-off against the original defendant
(called third party plaintiff

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 Cont’d….

• The third party should appear and raise any objection

he may make to his intervention demanded by the
defendant.
• If third party fails to appear on the date he is
supposed to appear, he is deemed to have admitted
the existence of contribution or indemnity between
him and the defendant.

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 When does third party practice raised?

• The application for third party practice is subject to a

time limit.
• The defendant should raise it as soon as he appears
before a court to make a defense against a claim of
the plaintiff.

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 Change of parties
• Unlike criminal case in civil suits, there is a
possibility that others can replace the original parties
upon death of one of them /art.48 of civil procedure/.
• Whether or not the right to sue survives depends on
the provisions of substantive law.
• Unless the subject of a suit is related to a personal
obligation of the deceased person, a suit is said to
have survived a person’s death.

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 Cont’d…

• If a court concludes hearing of a case and adjourns

the case to make a decision death of parties could not
hinder from rendering a decision as provided under
art. 53.

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