In Wiri v. Wuche (1980) 1-2 SC 1, this Court dealt exhaustively on representative actions. In the case, the Court said: “The attitude this Court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and the authority of those they represent, this Court does not and will not upset a judgment of the lower Court merely on a bare objection of failure to obtain the approval of the Court.” The Court had earlier said at page 18 of the Report: “There is no doubt that the authority for plaintiffs to sue on behalf of a community must come from that community and the order for leave to prosecute on behalf of a community under the rules of the High Court of Eastern Nigeria must come from the Court (and, here, we are in agreement with the decision in Oguchi v. Egbuchi (Supra) (see also the decision of the High Court of Eastern Region in Nsima v. Ole Nnaji and others (1961) 1 All NLR 441; otherwise the plaintiffs must be regarded as prosecuting such proceedings in their personal capacity.” It was after the Court made the above statement that it came to the conclusion that the Court will not upset a judgment of a trial Judge merely on a bare objection of failure to obtain the approval of the Court. The decision of this Court in Wiri v. Wuche comes to this: although leave is necessary at the trial Court to sue in a representative capacity, an appellate Court will not upset the judgment merely because such leave was not obtained in the trial Court.
FAILURE TO OBTAIN LEAVE TO SUE IN REPRESENTATIVE CAPACITY WILL NOT VITIATE PROCEEDINGS
In Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) 342, the Court held that where a plaintiff institutes an action in a representative capacity, leave of Court to sue in representative capacity is superfluous. See also Ifekwe v. Madu (2000) 14 NWLR (Pt. 688) 459, where the Court also held that failure to obtain the leave of Court to sue in a representative capacity is not fatal as to vitiate the proceedings. The Court cannot therefore strike out or dismiss an action just because the plaintiff did not obtain the leave of the Court to sue in a representative capacity, as this will defeat the justice of the case. See also Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587.