Chief A.O. Uku & Ors .v. D. E. Okumagba & Ors. (1974)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C. 

This appeal raises two fundamental points of law in relation to jurisdiction, practice and procedure. The first point concerns the jurisdiction of the High Court of the Mid-Western State as to the joinder of parties in exercise of its powers under the Civil Procedure Rules. The second relates to the competence of a Court to act on apparently and patently conflicting affidavit evidence without taking oral evidence with a view to testing and evaluating such evidence for the purpose of resolving such conflicts.

In this judgment, the plaintiffs who instituted the substantive suit which has resulted in the present appeal and the Shell BP Petroleum Development Company Limited, the 3rd defendant in the said suit, will throughout be referred to as the plaintiffs and the 3rd defendant respectively. Both played no pan in the application, the subject matter of this appeal, both in the High Court and in this Court. The only parties concerned in this procedural gymnastics are the 1st and 2nd defendants in the suit herein to be referred to as the 1st and 2nd appellants, who defend the suit on behalf of themselves and the Olodi, Oki and Ighogbadu families of Okere, Warri; and the intervener, Omosohwofa Eboh, the 4th defendant, herein to be referred to as the respondent. It is his application which has occasioned this appeal.

The circumstances which gave rise to the appeal are these: On 27th December, 1968 the plaintiffs in suit No. W /63/68 in the High Court, Warri, claimed against the appellants and the 3rd defendant the following:

“(i) An Order directing the 1st defendant to pay over to the plaintiffs all monies paid by the 3rd defendant to him as annual rents and/or compensation in respect of the 3rd defendant’s occupation and user of the Okere (Plaintiffs) Section of the Warri By-Pass.

(ii) An Order directing the 2nd defendant to pay over to the plaintiffs the sum of N388 wrongfully paid to him by the 3rd defendant as compensation for oil palm trees destroyed by the 3rd defendant in the course of constructing the Warri By-Pass over the Okere Section of the said By-Pass.

(iii) An Order directing the 3rd defendant to pay over to the plaintiffs all monies payable as rents and/or compensation in respect of the said Okere Section of the Warri By-Pass.

(iv) An injunction restraining the 3rd defendant their servants and/or their agents from making any payment of money or having any dealing or transaction with the 1st and 2nd defendants and/or their agents or privies and/or with any other person or persons other than the plaintiffs and/or Itsekiri Communal Lands Trust Warri in respect of the Okere Section of the Warri By-Pass.

(v) Any other reliefs.”

From the endorsement on the writ of summons, it should be noted that the 1st appellant was sued for himself and on behalf of Olodi family while the 2nd appellant was therein described as sued for himself and on behalf of Okere Urhobo Community.

On 17th January, 1969, the 1st and 2nd appellants applied to the Court for an order:

(1) to strike out the name “Okere Urhobo Community” from the writ of summons and to add thereto or substitute therefore as defendants the names of “Oki and Ighogbadu families of Okere, Warri”; and

(2) to authorise the 1st and 2nd appellants to defend the suit for them selves and on behalf of the Olodi, Oki and Ighogbadu families by whom they had been selected and authorised to defend the said suit.

The application was ex facie stated to have been brought in pursuance of Order VII Rules 10(2) and 11 of the High Court (Civil Procedure) Rules. It was supponed by Affidavit sworn to by the 1st appellant and certain representatives of the Oki and Ighogbadu families.

In his affidavit, the 1st appellant deposed, inter alia, that he is the Secretary of the Olodi, Oki and Ighogbadu families and had been such a secretary for the past 15 years; that during that period he acted as the “representative and/or agent” of the said three families “in their propriety transaction with outsiders”, and had actually in fact represented the said families as plaintiff in suit No. W/28/65 in the High Court, Warri, in an action for damages for trespass to land, property of the said families in Okere, Warri, which they won; that the money, the subject matter of the claim in the present suit, is the propeny of the three families aforesaid to whom the same had been paid by the 3rd defendant; and that he and the 2nd appellant had the full authority and consent of the three families to defend the suit on behalf of all the other members of the said families.

These statements on oath were materially coroborated not only by the representatives of Oki and Ighogbadu families in their own separate affidavits but, what is perhaps more imponant, also, wherever relevant, by the plaintiffs in their affidavit in support of their own separate and independent application which they instituted on 18th January, 1969 seeking an order of the court to authorise the 1st and 2nd appellants to defend the suit on behalf of Olodi family and the Okere Urhobo Community respectively. In their affidavit the plaintiffs clearly admitted that the 1st appellant is a member of accredited representative of the Olodi family; that on several occasions and, in panicular, in suit No. W /28/65 he represented as plaintiff the said Olodi family; and that he is a fit and proper person to defend the suit on behalf of himself and the olodi family.

Both applications were heard together by Ovie-Whiskey Ag. J. (as he then was). The main issue then contested was as to whether the 1st and 2nd appellants should represent the Olodi ,family and the Okere Urhobo Community or the Olodi, Oki and Ighogbadu families. There was no mention whatsoever of Emakro, Itifo and Ologho families.

In their argument in support of their application, the plaintiffs submitted that the money sought to be recovered was paid to and received by the Olodi family through their representative, the 1st appellant, and the Okere Urhobo Community also through their representative, the 2nd appellant; that the Olodi family and the Okere Urhobo Community were the proper defendants before the court. They therefore pressed that the 1st and 2nd appellants should be authorised by the Court in the exercise of its powers under Order VII Rule 9 to defend the suit for themselves and on behalf of the Olodi family and the Okere Urhobo Community.

These submissions were vigorously resisted by the appellants, who stoutly denied having collected any money at all on behalf of the Okere Urhobo Community about whom they knew nothing. They maintained that the money, the subject matter of the plaintiffs’ claim, was received by them for and on behalf of only the Olodi Oki and Ighogbadu families, to whom they had since paid over the same. They insisted that they had full authority and consent of the three families aforesaid as joint owners of the said money to represent them and defend the suit on their behalf as their accredited representatives.

In a considered and reasoned ruling, the learned acting judge rejected the arguments put forward by the plaintiffs and dismissed their application. He accepted the contention of the appellants and accordingly granted them authority in terms of the provisions of Order VII Rule 9 to defend the cause on behalf of the Olodi, Oki and Ighogbadu families of Okere, Warri. Furthermore, in the exercise of his powers under Order VII Rule 10/2) the learned acting judge struck out the name of “Okere Urhobo Community” from the suit.

In dismissing the plaintiff application, the learned acting judge said in part:

“It is common knowledge that the Urhobo Community in Okere is a fluctuating and indefinite number of people and in no way incorporated. The plaintiffs have not shown anything to the Court that the Urhobo Community in Okere is interested in the case. There is nothing in the affidavit of the plaintiffs to show that the Okere Urhobo Community authorised the defendants to defend this action on their behalf. Indeed the defendants say they would not defend the action on behalf of Urhobo Community of Okere as they did not receive the money on behalf of the Urhobo Community but on behalf of their three families.

It will therefore be most unreasonable for the Court to order the 1st and 2nd defendants to represent the Okere Urhobo Community in this case.”

The application of the 1st and 2nd appellants were granted in these words:

“The application of the 1st and 2nd defendants for an order striking out Okere-Urhobo Community from this suit and adding thereto Oki and Ighogbadu families of Okere as defendants to be represented by the 1st and 2nd defendants is hereby granted.

It is hereby ordered that the 1st and 2nd defendants should defend this action for themselves and on behalf of the Olodi, Oki and Ighogbadu families of Okere, Warri.

The writ of summons and other processes in this case are to be amended to show the proper capacity in which the 1st and 2nd defendants are defending this action by the plaintiffs.”

Thereafter, the learned acting judge ordered pleadings to be filed and delivered by all concerned. That order was made on 11th February, 1969. And we pause here to note that since the order for pleadings was made no pleadings of any kind have been filed. The fact that since 1969 no statement of claim has been filed by the plaintiffs is of material significance and relevance to the present appeal in that in the absence of a statement of claim no new facts beyond the endorsement on the writ of summons have been disclosed which could be calculated to have alened an intervener in the suit; and what is panicularly crucial in relation to the claim by the plaintiffs is that the endorsement on the writ of summons has not in any way disclosed the basis of the plaintiffs’ claim to be entitled to the refund to them of the monies which the appellants clearly admitted having received and which they described as their own.

Then on 21st May, 1969, and 23rd September, 1969 respectively, the plaintiffs filed applications for extension of time within which to comply with the order of court as regards the filing of pleadings. both applications came before Obaseki J. The 1st application was granted, time being extended to 18th September, 1969 while the 2nd application was on 16th October, 1969 struck out for want of appearance.

On 10th November, 1969, the plaintiffs were again granted an extension of time within which to comply with the order of court as to pleadings. This expired on or about 10th February, 1970. The plaintiffs again defaulted and on 30th July, 1970 the appellants filed an application for the suit to be dismissed for want of prosecution. Apparently altered by that application the plaintiffs once again on 8th August, 1970 applied to the court for a further extension of time. Both applications once more came before Ovie Whiskey J. and were dealt with on 10th August, 1970. By consent the appellants’ application was struck out while that of the plaintiffs was again granted, time being extended up to 90 days within which to comply with the order of court as to pleadings.

It seems that this last indulgence of the grant of extension of time served to open the floodgate to the Intervener. For on 16th September, 1970, this is, precisely 22 months after the writ of summons in the suit had been filed followed by a series of steps taken in the suit by the parties concerned, including an application, as already stated, for the suit to be dismissed for want of prosecution, the respondent suddenly as it were, woke up from his slumber. He applied to be joined as co-defendant in the suit. In the application he described himself thus:

“Omosohwofa Eboh (for himself and on behalf of Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo Quarters in Okere, Warri.)”

The application was expressed to have been brought under Order VII Rules 10(2) and 11. At the hearing, however, it was also stated to have been brought under Order VII Rule 9 although in the body of the motion there was nothing to indicate that the court was also to authorise the respondent to defend the action in a representive capacity. The application was supported by affidavits. There was also a counter-affidavit deposed to by the appellants.

We consider the contents of the affidavits and counter-affidavit crucial for a proper decision in this appeal. The relevant paragraphs of the affidavits and counter-affidavit are as hereunder appearing:

In paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of his affidavit the respondent deposed as follows:

“1. That I am a native of Uduvwun-Urhobo in Okere, Warri and head of the Olodi family of Uduvwun-Urhobo, Okere, Warri.

2. That the Okere portion of the “Effurun-Ogunu By-Pass” construction by the 3rd defendant, belongs to the Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo in Okere, Warri.
3. That these four families constitute the “Uduvwun-Urhobo Quarter of Okere” and have been in possession of the Okere section of the Bye-Pass known as “OTORIGO” land of Uduvwun-Urhobo, from time immemorial.
4. That the 3rd defendant in this case (Shell-BP Petroleum Development Co. of Nigeria Ltd.) constructed the Bye-Pass with our knowledge and have paid compensation fur the Otor-Igo (Okere section) of the Bye-Pass for our said four families.
5. That the 3rd defendant paid to the four families of Emakro, Olodi, ltifo and Ologho, some 1,3354 (one thousand, three hundred and thirty five pounds, ten shillings and four pence) which has since been shared exclusively by the four families.
6. That apart from the above sum, 3rd defendant paid to individual members of the four families’ compensation for their crops destroyed and other personal propenies damaged.
7. That Otor- Igo land is owned by the four families to the exclusion of Oki and Ighogbadu families.
8. That Oki family is in Odele Quarter and no member thereof has any land on, and in fact has never farmed in any part of Otor- Igo land through which the Effurun-Ogunu Bye-Pass runs.
9. That Ighogbadu family is settled in Odion, beyond Cemetery Road, Warri, where they have all their lands and have land in Otor-Igo through which the Bye-Pass runs.
10. That no member either of these two families (Oki and Ighogbadu) share a penny out of the compensation already paid for the use of the land and for the economic trees, by the 3rd defendant.
11. That when it came to my knowledge that the 3rd defendant has been taken to Court in respect of this land, I caused to be summoned, a meeting of the four families to wit: Emakro, Olodi, ltifo and Ologho on 13th September, 1970 and there, I was given the mandate to make this application for leave to join as co-defendant in this case for myself and on behalf of the four families of Emakro, Olodi, Itifo and Ologho.”

Paragraphs 1, 2 and 3 of the affidavit of Ghamijolo Eburu, Samuel Okumagba, Sunday Ukutala and James Ovwi in suppon of the respondent’s application are in the following terms:

“1. That we are respectively members of Emakro, Olodi, Itifo and Ologho families of Okere, Warri which make up the Uduvwun-Urhobo Quarter of Okere, Warri.

2. That on Sunday the 13th day of September, 1970, a representative meeting of the above-named. four families met in the house of Omosohwofa Eboh in Uduvwun-Urhobo Quarter, Okere, Warri and there, the implications of this case (W/63/68-Chief A.O. Uku & 4 others (for themselves and on behalf, of Ogitsi family of Okere, Warri) v. D.Eh. Okumagba and another (for themselves and on behalf of Olodi Oki and Ighogbadu families of Okere, Warri) and Shell-BP Petroleum Development Company of Nigeria Ltd., was fully discussed; and
3. That as a result of the deliberations, the four families of Emakro, Olodi, Itifo and Ologho decided to joint the above case as co-defendants as the subject-matter of the action is connected with land known as “Otor-Igo” which exclusively belongs to our said four families.”

The answer of the appellants to the affidavit in support of the respondent’s application is to be found in paragraphs 1, 2, 3,4,5, 11, 12, 14, 15, 17,18, 19,20,21,22,23 and 24 of their counter affidavit, which read:

COUNTER AFFIDAVIT

“1. I am the 1st defendant in this case and I depose to the facts contained in this counter affidavit with the full knowledge, authority consent and concurrence of the 2nd defendant H.U. Okumagba and on my own behalf and on behalf of the Olodi, Oki and Ighogbadu families of Okere, Warri.

2. I have perused the affidavit sworn to by Omosohwofa Eboh and the one sworn to by Gbamijolo Eburu, Samuel Okumagba, Sunday Okutala and James Ovwi in support of the applicant’s application to be joined as a co-defendant in this case and I fully understand the contents of the said affidavits.
3. The 2nd defendant and I are members of the Olodi family of Okere Warri, as well as the applicant Omosohwofa Eboh.
4. The plaintiffs’ claim originally was against the 1st defendant, D.E. Okumagba (for himself and on behalf of Olodi family) and the 2nd defendant H.U. Okumagba (for himself and on behalf of Okere-Urhobo Community) and Shell-BP Petroleum Development Company of Nigeria Limited as the 3rd defendant. A Photostat copy of the writ of summons and claim is hereto attached and marked as Exhibit “A”.
5. On the 11th February, 1969, on an application by the 1st and 2nd defendants (no counter-affidavit filed) the Court ordered that the 1st and 2nd defendants (Le. D.E. Okumagba and H.U. Okumagba) to defend this action for themselves and on behalf of Olodi, Oki and Igbogbadu families.

Writ of summons to be amended accordingly. A photostat copy of the affidavit and attachments attached to the application by the 1st and 2nd defendants is hereto attached and marked as Exhibit “B”. Plaintiffs’ motion

(i) that the 1st defendant, defend the action for himself and on behalf of Olodi family and

(ii) the 2nd defendant, defend for himself and on behalf of Okere Urhobo Community was dismissed. A photostat copy of the counteraffidavit sworn to by the 2nd defendant (H.U. Okumagba) in opposition to the plaintiffs’ application which was dismissed and which clearly shows in paragraph 6 that he received the said money for and on behalf of the three families, vis:, Olodi, Oki and Ighogbadu is hereto attached and marked as Exhibit “C”.

11. Paragraph 1 of the affidavit of Omosohwofa Eboh is untrue. Omosohwofa Eboh is not head of the Olodi family as the three families of Olodi, Oki and Ighogbadu have one head for the three families. The present head Mr. Amoforitse of Ighogbadu family succeeded the late Chief Okumagba of Olodi family as head of the three families.
12. Paragraphs 2,3,4 and 5 of the affidavit of Omosohwofa Eboh are untrue.
13. Paragraph 7 of the affidavit of Omosohwofa Eboh is untrue. The land is owned by Olodi, Oki and Ighogbadu families of Okere, Warri.
14. Paragraphs 8 and 10 of the affidavit of Omosohwofa Eboh are not true.
15. Paragraph 11 of the affidavit of Omosohwofa Eboh is untrue. No meeting was ever held between Olodi family, Emakro, Itifo and Ologho families. When this action was filed in 1968, a meeting of the three families of Olodi Oki and Ighogbadu was held and 1st and 2nd defendant were authorised to file a motion and pray this Honourable Court to be allowed to represent the three families. The applicant, Omosohwofa Eboh was present at the meeting of these three families which mandated myself and 2nd defendant to represent Olodi, Oki and Ighogbadu families. He did not object to the decision of the said families. No application was made by the applicant or by another member of the Olodi family to this Honourable Coun to oppose our application to defend this action in a representative capacity for and on behalf of the three families.
16. That at no time was a meeting held as alleged in paragraph 12 of the affidavit of Omosohwofa Eboh, and that no meeting was held by Olodi family or by Olodi, Oki and Ighogbadu families as alleged.
17. That the applicant, Omosohwofa Eboh cannot represent Olodi family as the interest of that family is already adequately protected by the Order of this Honourable Court given on 11 th February, 1969 which said order is still binding. No application has up till now been made to this Honourable Court to the best of my knowledge to have the said order discharged.
18. Before the 2nd defendant and I were authorised to defend on our own behalf and on behalf of Olodi, Oki and Ighogbadu families two prominent members of the families present at the meeting swore to an affidavit which accompanied the application to this Honourable Court. The photostat copy of the affidavit is one of the attachments included in Exhibit “B”.
19. 1st and the 2nd defendant have the due authority and consent of the three families of Olodi, Oki and Ighogbadu to oppose this application of Omosohwofa Eboh to defend this action on behalf of Olodi family and I attach hereto and mark as Exhibit “D” the joint affidavit of James Dederu Oki family, Richard Otimeyin Obire of Ighogbadu family and Benjamin Oyeofo Okumagba of Olodi family in suppon of our opposition to this application.
20. That the applicant has no bona fides in making this application as long as Olodi family is already well represented in the action.
21. Paragraphs 2, 3, 4 and 5 of the purponed affidavit of Gbamijolo Eburu, Samuel Okumagba, Sunday Okutala and John Ovwi are not true.
22. That I believe that the application is a deliberate attempt to cause confusion in the just determination of the above case.

On the receipt of the appellants’ counter-affidavit the respondent immediately filed a further affidavit in which he apparently joined issues with the appellants. The relevant parts of the further affidavit are paragraphs 2, 3, 4, 5 and 6 which are as follows:

“2. That the facts sworn to in my affidavit of 17th September, 1970 in suppon of the application for joinder are true to the best of my knowledge and are deposed to in good faith.

3. That I am the head of Olodi family and in that capacity, I preside over all important meetings of the family which are normally held in my place. I also worship the family shrines.
4. That at no time was it brought to my knowledge that an application was being brought to court by 1st and 2nd defendants to defend on behalf of Olodi, Old and Ighogbadu families nor was I present at any meeting at which any such decision was taken.
5. That at no time were the 1st and 2nd defendants mandated by the Olodi family of which I am the head, to defend this action either as representatives of Olodi family or as that of Olodi, Oki and Ighogbadu families or any family at all; and
6. That the interest being represented by the 1st and 2nd defendants in the substantive action is inconsistent with the interest of the real owners and it is necessary to have them properly represented.”

The affidavits and counter affidavit raise most controversial issues of fact which compel investigation or at least some enquiry. They introduce new matters inconsistent with the claims of the plaintiffs. The facts sworn to by the respondent in his affidavits are most violently in conflict with the facts deposed to by the appellants in their counter-affidavit.

On 23rd September, 1970 the application came yet before another Judge. This time it was Atake J. At the hearing two matters stood out from the proceedings as most remarkable and somewhat peculiarly odd. The first is that even though the plaintiffs and the 3rd defendant were represented in court by counsel they took no part in the proceedings. It became a direct tussle between the respondent and the appellants. From the record of proceedings the plaintiffs and the 3rd defendant were never asked by the Court what their attitude was to the application.

The second is the number of questions which the learned judge himself put to the learned counsel who represented the respondent. Indeed, the learned counsel had to undergo a rigorous cross-examination- an indication that the learned judge himself was in doubt as to his jurisdiction as regards the exercise of his power of joinder in the circumstances disclosed by the proceedings and the affidavits. Nonetheless, the learned judge proceeded to deliver his ruling. He ordered that the respondent “do defend the suit on behalf of himself, the Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo Quarters in Okere, Warri”.

The order, which was made by the learned judge and has been the subject of severe attacked by learned counsel for the appellants, is in the following terms:

“It appearing that the members of Emakro, Olodi, ltifo and Ologho families are numerous and that they have a community of interest in the land and that the applicant, Omosohwofa Eboh, is one of them, it is hereby ordered that the said Omosohwofa Eboh do defend this suit on behalf of himself, the Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo Quarter in Okere, Warri except D.E. Okumagba and H.U Okumagba and those members of Olodi family who are in their camp.” .

This appeal is against the ruling and the order of the learned judge. It has been brought by the appellants who have complained of the said ruling and order on a number of grounds, among which we consider those set out hereunder as of particular importance and material relevance. These are:

1. That the learned judge erred in law in allowing Omosohwofa Eboh to represent Olodi family and three other families jointly after D.E. Okumagba and H.U. Okumagba had previously been authorised by the Court to represent the Olodi family and two other families jointly as defendants in the suit.
2. That the learned judge had no jurisdiction under Order VII Rule 9, 10(2) and 11 of the rules of court to make the order as to joinder of the intervener, Omosohwofa Eboh, in the capacity expressed in the order as by so doing the learned judge amended the previous order which had been made by another judge thereby constituting himself a court of appeal against the order of a judge of competent and concurrent jurisdiction.
3. The learned judge erred in law in accepting unquestioningly the averments contained in the affidavits of the respondent which were irreconcilably in conflict with the counter-affidavit sworn to by the appellants without hearing oral evidence from the deponents, having regard, especially to the allegations contained in the appellants’ counter-affidavit as to the lack of bona fides in the respondents’ application and the delay in bringing the same.

In his submissions on the three grounds of appeal which we propose to consider together, Dr. Odje, learned counsel for the appellants drew the attention of the court to the first Order which was made by Ovie-Whiskey Ag. J. (as he then was) on 11th February, 1969 in the exercise of his jurisdiction under order VII Rules 9 and 10(2) of the Rules of the High Court wherein the appellants were authorised to defend the suit for themselves and on behalf of the Olodi, Oki and Ighogbadu families of Okere, Warri; and the name of “Okere Urhobo Community” was struck out.

Learned counsel also pointed out that at that time there was no mention of the name of Omosohwofa Eboh as the head of the Olodi family; that, on the contrary, by their affidavit the plaintiffs had clearly admitted that the 1st appellant was a member and the accredited representative of the Olodi family; that he had represented the family in a previous suit in the High Court; that the application of the respondent was brought 17 months after the order made by Ovie-Whiskey Ag. J., and that that was some evidence of the absence of bona fides on the part of the respondent.

Learned counsel then submitted that Omosohwofa Eboh’s claim to be the Head of Olodi family is completely false; that the claim was challenged by affidavit evidence; and that, in any case, even if he were, he is completely covered by the order of 11 th February, 1969 authorising the appellants to represent the Olodi family. It was also contended by learned counsel that Atake J. was Functus Officio and had no jurisdiction to have granted the application brought by the respondent under Order VII Rules 9, 10(2) and 11 of the High Court Rules. The learned judge, it was submitted, therefore erred in law to have made the Order as the respondent was not a necessary party to the suit.

In support of the submission on the issue of jurisdiction based on the construction and the application of Order VII Rule 9, 10(2) and 11 of the rules of the High Court, learned counsel cited and relied on Miguel Sanchez & Compania SL. v. Result (Owners). Nello Simoni ltd., Third Party usually cited in short as ‘The Result’, (1958) Probate 174; and Chief Ekpere and 3 Ors. v. Chief Odaka Aforije and 4 Ors. (1972) 3 S.C. 117.

It was also submitted that the learned judge was wrong in law to have acted on the untested affidavits which were directly in conflict on crucial and essentially material facts in granting the application brought by the respondent for him to be joined as co-defendant in the suit; that having regard to the conflicting nature of the affidavits and counter-affidavit as to the assertions of the parties, it was the duty of the learned judge to have invited the parties to call oral evidence for the purpose of enabling him to test the affidavit evidence; and that his failure to do so is such a fundamental error of law as to have occasioned a miscarriage of justice Government of Ashanti v. Adjuah Korkor and Others. 4 W.A.C.A. 83; and Akinsete v. Akindutire (1966) 1 All N.L.R. 147 were cited as the authorities in support of this submission.

We turn now to consider these submissions and start off by observing that the order granted by the learned judge would appear to be defective and irregular on the face of it. for, whereas in his application of 16th September, 1970, the respondent had sought in express terms and order of the court allowing him to be joined as a co-defendant in the suit, in his ruling the learned judge, without in express terms adding him as a co-defendant, (he not having been a party to the suit originally) ordered “that the said Omosohwofa Eboh do defend this suit on behalf of himself, Emakro, Olodi,Itifo and Ologho families of Uduvwun-Urhobo Quarters in Okere, Warri”. In this respect the court appears to have been confused between authorising a party to defend an action in a representative capacity-which is regulated by Order 7 Rule 9 of the Rules of the High Court-and joining such party as a defendant-a matter within the purview of Order 7 Rule 10. The application did not expressly seek an order of the court authorising the respondent to defend the suit in a representative capacity.

As regards the submission by learned counsel we must fIrst give consideration to Order VII Rule 10(1)(2) and 11 of the Rules of the High Court, the provisions whereof are as set out hereunder:

“10(1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the parties may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

“(2) The Court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as to the Court or a Judge may seem just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions.

11. Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a Judge at any stage of the proceedings.”

The rule which deals with authorisation of a party to defend a suit in a representative capacity is Order VII Rule 9, which provides as follows:

“9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested”.

These rules were promulgated and became effective in 1958. They were adapted from the rules of the Supreme Court of England as they were then. For the proper comprehension and appreciation of the manner in which the rules are to be applied and their effect on the jurisdiction of the High Court, it is necessary, we thin, that reference be made to the manner in which the rules were at the time applied in the Couns in England. In this connection, we would observe that Order VII rules 10 and 11 are practically in pari materia with and appear to have been adopted with slight modification from Order 16 rule 11 of the rules of the Supreme Court of England which dealt at that time with “Misjoinder and nonjoinder: Striking out and adding parties etc.”, that being the manner in which the rules were then headed. (See Annual Practice 1957 p. 255).

We would, however, like to observe that compared with the English Rules there are two obvious printing errors in Order VII Rule 10(1) and (2) of the Rules of the High Court. In the second line of rule 10(1) as printed in Volume 2 at pp. 432 and 44 of the Laws of Western Nigeria, 1958, after the “Comma” the words “and the parties may in every cause or matter,” which we have underlined above, should read “and the Court may in every cause or matter”; and at the end of rule 10(2) there should be insened before the fullstop the words “be added”. Unless these amendments are made the rules do not make sense as they stand. The corrections suggested make them correspond in every material panicular to the English rule from which they obviously derived their existence.

We think on a careful examination of these rules that the submissions addressed by the learned counsel for the appellants to this Court are sound. They are well founded. Indeed, Mr. Ideh, learned counsel for the respondent, gave us the impression that the submissions were unanswerable. He did not, and could not suppon the Order of the learned judge with any enthusiasm.

We are satisfied that the learned judge acted without jurisdiction in ordering the respondent to defend the suit on behalf of Olodi family, having regard to the fact that the order made by Ovie-Whiskey Ag. J. authorising the appellants to defend the same suit on behalf of the Olodi family is still active and subsisting. The respondent is no longer a necessary party in that capacity for the purpose of enabling the court “effectually and completely to adjudicate upon and settle all the questions” in the suit. The words which we have underlined are the key words of the provisions of rule 10(2). Our view in this respect is in accord with the views of the English Courts in their interpretation and application of this panicular rule. That was cenainly the view expressed by Devlin, J. (as he then was) in Amon v. Raphael Tuck & Sons. Ltd. (1956) 1 All E.R. 273 when, after a review of a number of authorities, he said at p. 279:

“Accordingly, this case, in my view, really turns on the true construction of the rule, and, in particular, the meaning of the words

“. . . . . . . . . . whose presence before the coun may be necessary in order to enable the coun effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter. . . . . . . . ”

The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.”

The case of the respondent in the appeal under consideration has been made more complicated by the following facts:

(1) The claims of the plaintiffs being founded on debt was directed against the Olodi family and the Okere Urhobo Community on the basis that the money sought to be recovered was paid by the 3rd defendant to the Olodi family and the Okere Urhobo Community.

(2) The appellants in resisting the claim maintained that they had received the money for themselves and on behalf of Olodi, Oki and Ighogbadu families as joint owners of the same. The court accepted the appellants’ deposition and accordingly granted them authority to defend the suit for themselves on behalf of the Olodi, Oki and Ighogbadu families.

(3) The respondent now asserts that it was Olodi Emalcro, Itifo and Ologho families which had received the money from the 3rd defendant who, in this controversy, has not disclosed to whom it had in fact paid the money. This is the most unusual and peculiar feature of the case. For, whereas the appellants have sworn that they had received the money from the defendant for themselves and those they represent, the respondent also swears that he and those whom he seeks to represent had infact received the money for themselves. But those the respondent seeks to represent include complete strangers to the suit. It is therefore impossible for both versions of the admission to be true.

The Emakro, Itifo and Ologho families, being complete strangers, to add them as co-defendants with Olodi family to be represented by the respondent would completely alter the basis of the plaintiffs’ claim. It seems that there is an entirely new dispute which has arisen between the appellants and the respondent as to who in fact had received the money.

In the present suit the respondent is not saying that he is dissatisfied with the appellants’ representation of the Olodi family. Had that been the case, the respondent might have been entitled to have himself added personally as a separate defendant to enable him to put forward his views at the trial but not in substitution for the original representatives of the defendants.

It seems to us quite plain that without the respondent being joined as a co-defendant, the present suit is not liable to be defeated as it is possible for the coun to adjudicate upon the cause or matter without the presence of the respondent as a representative of the Olodi family. The respondent and the families of Emakro, Itifo and Ologho are not claiming in the same right with the appellants. As was observed by Devlin J. in Amon v. Raphael Tuck & Sons, Ltd. (Supra) the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. This is purely a question of jurisdiction.

In considering Order 16 rule 11 of the English rules Willmer J., in “The Results” (supra) said at page 179:

“The rule providing for the joinder of additional parties is R.S.C., Ord. 16, r. 11. It is not, I think, disputed that the third parties are entitled to the order sought only if they can bring themselves within the terms of that rule. having regard to the terms of the rule, it appears to me that the questions to be determined on this summons are these. First, is the cause or matter liable to be defeated by the non-joinder of the third parties as defendants This, I think means in effect: is it possible for the court to adjudicate upon the cause of action set up by the plaintiffs, unless the third parties be added as defendants Secondly, are the third parties persons who ought to have been joined as defendants in the first instance Thirdly, and alternatively, are the third parties persons whose presence before the court as defendants will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter”

And finally at p. 184:

“In these circumstances, in my judgment, the third parties’ application to be added as defendants must fail, because it is not shown that the cause or matter, the dispute arising in relation to the plaintiffs’ claim is liable to be defeated by the non-joinder of the third parties as defendants, nor is it shown to my satisfaction that the third parties are persons who ought to have been joined as defendants in the first instance, or that their presence before the court, as defendants, is necessary to enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter, within the meaning of the rule.”

Applying the principles stated above to the facts and circumstances of the matter on appeal, we hold that the learned judge had no jurisdiction to have added the respondent in the suit in the capacity in which he did as a codefendant Furthermore, the learned judge acted without jurisdiction to have purported to set aside though indirectly the previous order made by a court of competent and concurrent jurisdiction. He was functus officio.

There are authorities for the proposition that as a matter of practice an application which is supported by an affidavit against which there is also a counter-affidavit where the facts deposed to in such affidavits are irreconcilably in conflict then in order to resolve such conflicts the judge ought to invite the parties thereto to call oral evidence if they wish. Such oral evidence would enable him to test the affidavit evidence and thereby be enabled to resolve such conflicts before acting on such affidavit evidence. (See Government of Ashanti v. Adjuah Korkor and Others 4 W.A.C.A. 83; and Akinsete v. Akindutire (1966) 1 All N.L.R. 147). In the present case the learned judge failed to act in terms of this old established practice. We accept the submission by learned counsel for the appellants that this failure has occasioned a miscarriage of justice. The order of the learned judge cannot therefore in the circumstances be sustained.

This appeal therefore succeeds on all the grounds argued before us. It is allowed. The order dated 23rd September, 1970 made by Atake J. authorising the Intervener, Omosohwofa Eboh, to defend suit No. W /63/68 in the High Court, Warri on behalf of himself the Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo quarters in Okere, Warri is hereby set aside.

The name of Omosohwofa Eboh purportedly joined as co-defendant is accordingly struck out. The order made by Ovie- Whiskey Ag. J. on 11th February, 1969 is hereby restored and affirmed. The appellants are entitled to the costs of this appeal assessed and fixed at N139 as well as the costs in the High Court assessed and fixed at N42 as they ought to have succeeded in that court.

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Other Citation: (1974) LCN/1813(SC)