Selected Topic Civil procedure

VI) REPRESENTATIVE SUITS

National Agricultural and Food Corporation vs Mulbadaw Village Council and Others (1985) TLR 88, thus:-

“….Each claim is different from the other …..they were individual claims.  A person may act and represent another person, but we know of no law or legal enactment which can permit a person to testify in place of another…..direct or incontestable documentary evidence is required to sustain a …..claim. (Emphasis provided).

The proceedings of Representative Suit ought to have been conducted, in our view, pursuant to the provisions of Order 1 R 8(1) of the CPC which provides:-

“Where there are numerous persons having the same interest in one suit, one or more of such persons may, with permission of the court, sue or be sued or may defend in such suit, on behalf of or for the benefit of all persons so interested……” (Emphasis provided).

K. J. Motors & 3 Others vs Reichard Kashamba and Others, Civil Appeal No. 74 of 1999 CA

1.      The provisions of section 134 (now s. 139) of the Employment Ordinance do not exclude the application of Order 1 R 8(1) of the CPC to employment cases.

2.      The said Rule 8(1) governs certain categories of cases and requires such cases to be brought with leave of the court.

3.      The discretion or option provided under Order 1 R 8(1) is given to the parties – either to sue as individuals or to be represented by one or some of them for and on behalf of the others.

4.      Before granting leave to sue in a representative capacity, the court must satisfy itself that the complainants do exist and that they have duly mandated their representative to sue on their behalf.

In the Kashamba case, the Court concluded by stating that:-

“We are firmly of the view that compliance with Order 1 R8 is a necessary requirement even in employment suits…. (Emphasis provided).

The Court of Appeal in the land mark case in as representative suit are concerned DIRECTOR, RAJANI INDUSTRIES LTD VERSUS ALLY KANUWA & 26 OTHERS CIVIL APPEAL NO. 98 OF 2009 subscribe to the foregoing views in Kashamba case and proceed to hold that

“the same are authoritative and binding to the High Court.  Failure to comply with that fundamental requirement that is, non compliance with Order 1 Rule 8(1), is fatal”

At the end of the course students are expected to be able to;

a)        Draft pleadings for a wide range of persons including minors, persons of unsound mind, public officers, firms and corporate bodies;