Facts:

The respondent filed Suit No. FHC/L/CS/772/2002 at the Federal High Court Lagos division against the appellants as defendants for themselves and on behalf of all the shareholders of Universal Trust Bank (the 1st appellant) except the plaintiff/respondent seeking a declaration that 5% of the issued share capital of the 1st defendant bank held by the 2nd and 3rd appellants are held in constructive trust for the respondent; an order of mandatory injunction compelling the 1st appellant to transfer 5% of its shares to the respondent as well as their ancillary reliefs.

By a Motion ex-parte filed on 2nd October 2002, the respondent sought an order of court granting leave to sue the 2nd and 3rd defendants in a representative capacity as well as an order for substituted service of the court processes on 2nd and 3rd defendants. The foregoing prayers were granted by the Federal High Court on 13th February 2002. Upon service of the processes on the appellants, they filed a Notice of preliminary objection dated 12th November 2002 seeking orders of court to strike out the suit against the 2nd and 3rd defendants/appellants in their representative capacity. On 22nd January 2003 the parties argued the preliminary objection and the court in a considered ruling dismissed the application on the ground that there was no compliance with the provisions of Order 9 Rule 11 of the Federal High Court (Civil Procedure) Rules. The appellants being dissatisfied with the above decision, appealed to the Court of Appeal.