Chief Ajah Ojah Vs Chief Eyo Ogboni & Ors (1976)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, JSC. 

In Suit No. C/84/73, the plaintiffs took out a Writ of Summons endorsed as follows: “Plaintiffs’ claims against the defendants, jointly and severally, are as follows:

(1) A declaration that the plaintiffs are lessors of about three-fifths of the Biakpan Rubber Estate land held on lease by the 7th defendant.

(2) An order directing the defendants to pay over to the plaintiffs the sum of N930.90 being three-fifths of the amount of N1,551.50 paid by the 7th defendant as rent for the aforesaid rubber estate for the year 1972; to the 6th defendant to pay over to the plaintiffs’  community and the 1st, 2nd, 3rd, 4thand 5th defendants which amount was actually collected by the 4th defendant, who refused or neglected despite repeated demands to pay over to the plaintiffs the latter’s own aforesaid share of N930.90, or anything”.

The parties duly filed their respective pleadings and the case eventually proceeded to trial before Ecoma, J. Three witnesses (including the 2nd plaintiff) testified for the plaintiffs; and after the 3rd and 4th defendants had testified for the 1st to 5th defendants who had jointly filed a Statement of Defence, the case was adjourned on the 6th of June, 1974, to the 3rd of July, 1974 “for continuation and address”.  The plaintiffs however filed a motion on the12th of June, 1974 seeking the following orders:

“(1) An order granting approval to the plaintiffs on record to bring this action for themselves and as representing the people of Etono 2 village in Ubaghara Clan, Akamkpa Division.

(2) An order granting leave to the plaintiffs to amend their Particulars of Claim and Statement of Claim as follows:

(a) By substituting the word (sic)1973 for the word (sic) 1972 in line 4 of paragraph 2 of the Particulars ofClaim and line 4 of sub-paragraph 2 of paragraph 19 of the Statement of Claim.

(b) By substituting a comma for thefull-stop at the end of paragraph 2 of the Particulars of Claim andsub-paragraph 2 of paragraph 19 of the Statement of Claim, and addingthereafter the following words, ‘or such sum or amount as may bedetermined by the court to represent plaintiffs’ fair or equitable share of thesum of N1,551.50 aforesaid’”.

When the motion was called on the 3rdof July, 1974, learned counsel for the 1st to 5th defendants, Mr. Orok, raised some preliminary objections, and the matter was then adjourned to the 25th of October, 1974 for “ruling and continuation”. For the reasons stated in the ruling, the learned Judge refused both arms of the plaintiffs’ application.  This is an appeal by the plaintiffs against that ruling. At the hearing of the appeal, two grounds of appeal were argued.

One ground was directed against the refusal of the lower court to grant the order sought in the first arm of the motion; and the other ground was directed against the refusal to grant the order sought in the second arm of the motion. It is convenient to consider the two grounds of appeal separately and we shall now proceed to deal with the first ground ofappeal.

As stated earlier, the prayer sought by the plaintiffs in the first arm of the application was for an order granting them approval to sue for themselves and as representing the people of Etono 2 village in Ubaghara Clan, Akamkpa Division. The application was supported by an affidavit sworn to by the 2nd plaintiff. A document marked “Annexure A” was attached to the affidavit. Annexure A is a written authority purporting to empower the plaintiffs to sue in a representative capacity. The said “Annexure A” bore the thumb impressions of six persons who described themselves therein as the chiefs and principal family of the village. After setting out the salient portion of the affidavit in his ruling, the learned Judge pointed out that the defendants did not swear to any counter-affidavit; and expressed the view that in substantiating his preliminary objections, Mr. Orok in fact argued the motion. The learned Judge therefore proceeded to consider the motion on its merits; and in the concluding portion of his ruling, he declined to grant the order to sue in a representative capacity because –

1. the 2nd plaintiff did not disclose what interest he or those who thumb impressed Annexure A had in the suit; and

2. those who thumb impressed Annexure A did not file any affidavits.