In Ejezie v Anuwu (2008) 12 NWLR (Pt. 1101) 446 S.C., the apex court held thus:
No person can in the same suit be both the plaintiff and the defendant, even in different capacities. (P. 470, para. H)
Subsequently, In the court of appeal decision of the case of EZEALA & ORS v. UGAH & ORS (2019) LPELR-46904(CA), the court by way of exception explained where a person can both be plaintiff and defendant in the same suit as follows:
“Of course, the locus standi of the plaintiffs (1st to 7th Respondents) to initiate the action cannot be in doubt, the claimants having brought the suit for themselves and on behalf of their Organization – Ibe-Uzoh Progressive Union, Oboro, Ikwuano L.G.A, and the Appellants had admitted that, by the Constitution and Bye-laws of the Ibe-Uzo Progressive Union (Article 011), the President general, Secretary-general, Treasurer and Traditional Ruler of the Community are trustees of the Progressive Union and empowered to sue, on behalf of the Union.
Appellants had also admitted that only the 1st Appellant (Eze Innocent C Ezeala), they claimed to be the Traditional Ruler of Ibe-Uzo Autonomous Community, was not one of the plaintiffs, but was rather the 5th Defendant.
I do not think the non-inclusion of the 1st Appellant as one of the plaintiffs in the suit, but being made one of the Defendants, would affect the competence of the suit, or and locus standi of the plaintiffs to initiate the action, if the quarrel of the plaintiffs is with the 1st Appellant, in his personal capacity. See the case of CA/OW/249/2014 HRH Eze Aloysius & Anor Vs Nze J.C. Okike & Anor, delivered on 17/12/18, where we held that, where the contending parties to a suit, appear to advance personal or primordial interests in a suit, that that should be distinguished from where they are contending over or advancing corporate interests and in a representative capacity.
And what qualifies a party to take out representative action is joint interest or common interests of the parties (claimants or defendants) over the issue. See Apeh & Ors Vs PDP & Ors (2016) LPELR – 40726 SC; Durbar Hotel Plc Vs Ityough (2016) LPELR-42560 SC.
In the case of Okeahialam & Anor vs Nwamara & Ors (2003) FWLR (Pt.176) 633; (2003) LPELR – 2429 SC, it was held:
“The general rule is that the same person can not be both a plaintiff and a defendant in the same case.
However, in my opinion, that general rule, strictly understood, is only applicable to parties actually before the Court.
The distinction between the parties named in the proceedings and persons represented in the proceedings is always present.
In a representatives proceedings, for instance, a person represented in but not a party to the proceedings cannot have the judgment in the representative proceedings enforced against him, without leave, whereas it would have been so enforceable against the defendant or defendants, actually before the Court…
I am of the same view as the Court below, that in a representative action, the person who named himself as a plaintiff suing the defendant in a representative capacity must be deemed to have excluded himself from the class represented by the representative Defendant.
It defies reason to argue that a person who has sued a defendant as representing an association to which, he belongs, for wrongfully acting against his interest must be deemed to be represented as a defendant by the named defendant, merely because he did not expressly state that he had exempted himself, just as it would have defied reason to presume that he had alleged a wrong committed by himself against himself.” (Underlining mine).” Per ITA GEORGE MBABA, JCA (Pp 25 – 28 Paras D – B)
In the recent case of Ayeku v Ayeku (2024) 6 nwlr (Pt. 1934) 369 C.A, it was further held that:
The principle against a party being made a plaintiff and a defendant in the same action admits of exceptions. One of such exceptions is where thefamily by the action it has instituted has made itclear that even though the defendant is one of theirown, he is being sued for infraction committedagainst family property.”