Chief J.s. Ekpere & Ors Vs Chief Odake Aforije & Ors (1972)
LawGlobal-Hub Lead Judgment Report
LEWIS, JSC.
In Suit S/11/64 in the Sapele High Court the plaintiffs sued “for themselves and on behalf of the Mosogan Village Community of Jesse Clan” and their writ of summons read:-
“By a Deed of Lease dated 26th September, 1953, and registered as No. 7 at page 7 in Volume 42 of the Lands Registry, Ibadan but now at Benin-City in the Mid-Western Region of Nigeria, the elders and people of JESSE CLAN purported to demise to the firm of JATHOMAS RUBBER ESTATES of Sapele all that piece or parcel of plaintiffs’ land lying and being situate between EFO and UKPEKELE Villages (MOSOGAN) within the jurisdiction of this Honourable Court.
On 10th January,1964,1st, 2nd and 3rd, 4th defendants acting for and on behalf of the JESSE COMMUNITY purported to grant written consent to assign the residue of the above lease to 5th defendant. The plaintiffs therefore claim as follows against defendants:-
(a) A declaration that the piece or parcel of land demised by the above recited lease is the exclusive landed property of plaintiffs and not the entire JESSE CLAN COMMUNITY.
(b) A declaration that the purported assignment of the said lease to 5th defendant is invalid, null and void. (c) Rectification and or cancellation of the said lease. Annual rent of land: £31:10/-.”
The writ was issued against the 1st and 2nd defendants“ for themselves and as representing the people of Jesse Village Community of Jesse Clan” and against the 3rd and 4th defendants “for themselves and as representing the people of Onyobru Village Community of Jesse Clan.” The status of the plaintiffs and first four defendants was further emphasized in paragraphs 1 to 3 of the Statement of Claim which read:-
“1. The plaintiffs are Urhobos, Chiefs and Elders of the MOSOGAN-VILLAGE COMMUNITY OF JESSE CLAN in Western Urhobo and are prosecuting this action as the self-elected representatives of the MOSOGAN VILLAGE COMMUNITY aforesaid.
2. The 1st and 2nd defendants are Urhobos, Chiefs and Elders of the JESSE-VILLAGE COMMUNITY of JESSE-CLAN in Western Urhobo and are sued as representatives of the said JESSE-VIILAGE COMMUNITY.
3. The 3rd and 4th defendants are Urhobos, Elders of the Onyobru-Village Community of JESSE-CLAN in Western Urhobo and are sued as representatives of the Onyobru-village community.”
Paragraph 10 of the Statement of Claim further showed the relationship of the respective communities where it was pleaded:
“The MOSOGAN -VILLAGE COMMUNITY is one of the communities making up the entire JESSE CLAN. JESSE-VILLAGE COMMUNITY AND ONYOBRU-VILLAGE COMMUNITY are but two other such communities within the said clan.”
On the first claim in the writ, a declaration was sought that the land in dispute was solely the property of the plaintiffs as representing the Mosogan Village Community and was not the property of the Jesse Clan; the second and third claims in the writ pertained to a lease (Exhibit JU1), in respect of the land in dispute made to partners in the firm, Jathomas Rubber Estates, which firm, subsequently became incorporated as the limited company which was sued as the 5th defendant to the action. The parties to that Deed of Lease (Exhibit JU1), were set out therein as follows:
“THIS INDENTURE made the 26th day of September, 1953, BETWEEN CHIEF J.S. EKPERE President of the Jesse Clan Council for himself and on behalf of the Jesse Clan; CHIEF AWHE OKEREDE and CHIEF D.A. ORIGHOYEGHA for themselves and on behalf of the Jesse Clan and of the elders and people of Mosogan; CHIEF PINNOCK UMAYA and CHIEF IKEWU for themselves and on behalf of the Jesse Clan and of the elders and people of Jesse: and OPIEPIEH OGHENEBRUME and OKORO OKUEBOR for themselves and on behalf of the Jesse Clan and of the elders and people of Onyobru (hereinafter called “the Lessors”-) of the one part AND DR. HORATIO ORITSEJOLOMI THOMAS of University College Ibadan, Mabel Thomas Uku, Charlotte Asaboro and Emma Thomas all of Sapele Nigeria partners in the Firm of JATHOMAS RUBBER ESTATES of Sapele Nigeria (hereinafter called “the Lessees” which expression shall where the context so admits include their respective heirs personal representatives and assigns) of the other part.” Pausing there, it is quite clear to us that the plaintiffs’ claimed not only title to the land in dispute as against the Jesse Clan as such, but that they also claimed that the representatives of that Jesse Clan on behalf of the Jesse Clan had wrongly purported to lease the land by Exhibit JU1.
The plaintiffs in accordance with Order 7 Rule 9 of the High Court (Civil Procedure) Rules of the Western State, applicable in the Mid-West, sought leave of the High Court for the 1st and 2nd defendants and 3rd and 4th defendants to defend as representatives of the Jesse Village Community and the Onyobru Village community respectively and this application was granted by Rhodes-Vivour on the 14th of November, 1966. The plaintiffs then called evidence in support of their claims, as did the 1st defendant and when 3rd defendant had just finished giving his evidence a motion brought by two persons, Oke Agbaje and Okoro Egwruje, in the following terms:-
“TAKE NOTICE that this Honourable Court will be moved on 29th day of October, 1968, at the hour of 9 0’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the applicant for an Order of this Honourable Court to add the Applicants’ names as defendants either in addition to or in substitution of Opiepieh Oghenebrume and Okoro Okuebor as representatives of Onyobru Community and for such further Order or Orders as this Honorable Court may deem fit in the circumstances.” and after considering an affidavit in support of the motion, counter affidavit filed by the 3rd and 4th defendants opposing the motion, Rhodes-Vivour J., in a ruling delivered on the 22nd of November, 1968, said inter alia: “In the opinion of this court the said item (a)” (of the plaintiffs’ writ)” and the claim as a whole cannot be effectually and completely settled unless the applicants are made a party. The applicants, in the interest of justice and future eventualities such as litigations in which land in the Clan or in the Onyobru Community is the subject matter, should be given the opportunity so as to enable them take advantage of the doctrine of estoppel or be caught by the doctrine, depending on the evidence before this court, and the judgment of this court in this action. In the circumstances, I order that the applicants be made party to defend this action for themselves and on behalf of the Onyobru Village Community, and that the 3rd and 4th defendants defend the same for themselves in their personal capacity. The said order for the 3rd and 4th defendant to defend for themselves and as representing the people of Onyobru Village Community made by this court is accordingly amended. The writ of summons, Statement of Claim, and Statements of Defence are likewise amended.”
And the two applicants were accordingly joined as the 6th and 7th defendants in the action as representing the Onyobru Village Community and the 3rd and 4th defendants were thereafter left in the action solely in their personal capacity and not as representing the Onyobru Village Community. The hearing of the action then proceeded further and eventually on the 25th of July, 1969, the learned trial Judge gave judgment for the plaintiffs on their claims in paragraphs (a) and (b) of the writ for declarations and so far as the claim in paragraph (c) of the writ for rectification and/or cancellation of the lease was concerned, he granted it in the following terms:- “Rectification and or cancellation of the lease, Exhibit J.U.I are equitable remedies. In the light of the evidence before this court and in order not to cause undue hardship on the owners of Jathomas rubber Estates against whom there is no evidence that they knew of the fraud leading to the signing of Exhibit J.U.I and knowingly took part in it, to my mind the proper remedy should be rectification. I therefore order that the names of the Representatives of Onyobru Community, and the Representatives of Jesse Community, be struck off the Deed of Lease dated the 26th day of September, 1953, Exhibit J.UI, and that the Lease stands as between the representatives of the Mosogan Community, and the Lessees as therein contained.”
Before us on this appeal, Chief Williams, for the 1st to 4th defendants as appellants, argued two points. He first of all submitted that the action was entirely wrongly constituted as the relief sought was against the Jesse Clan, yet the Jesse clan as such was never made a party to the action. Then he submitted that the learned trial Judge was in error to grant the application as he did, making the 6th and 7th defendants to be defendants to the action as representing the Onyobru Village Community, when he had already authorised the 3rd and 4th defendants to represent that community, and if the court was with him in his submission, then Chief Williams asked for an order of re-trial. Now as to Chief Williams’ first point, as we have already indicated, in our view it was absolutely clear both on the claim as formulated in the writ and in the Statement of Claim that the plaintiffs were seeking to obtain declarations that the Jesse Clan as such had no interest in the land in dispute as it was Mosogan Village Community land and had no right accordingly to deal with the land on behalf of the Jesse clan through its representatives when they made the Lease, (Exhibit JUI) and that that Lease should therefore be declared null and void. That being so, we do not understand why the plaintiffs saw fit, when bringing the action, not to make the Jesse Clan, through appropriate representatives, a defendant to the action. Dr. Odje, for the plaintiffs urged upon us that as the Jesse Clan was composed of three component parts, the Mosogan Village Community, the Jesse Village Community and the Onyobru Village Community and as the plaintiffs on behalf of one of those communities sued the representatives of the other two communities therefore all the parties to the Jesse Clan were parties to the action so there was no injustice in the Jesse Clan not being sued as such. We do not see the position like that at all. The representatives of three village communities each had their own individual interests but these interests were not necessarily the interests of the Jesse Clan as such and in our view it was not enough for the plaintiffs to sue the representatives of the other two communities within the Jesse Clan when what they were attacking was not whether either or both of those other communities as such had any interest in the land in dispute, but whether the Jesse Clan as such had an interest in the land in dispute.
The plaintiffs should accordingly in our view have through their representatives sued the Jesse Clan – other than the Mosogan Village Community – as otherwise the Jesse Clan as such could not properly adduce evidence as to whether the land in dispute was Jesse Clan property as opposed to the property of a community. Dr. Odje then sought to argue that no injustice was anyway done as the representatives of the other two communities could have spoken up on behalf of the Jesse Clan, and that therefore, this court in its discretion should of its own volition now join the Jesse Clan, as a defending party and then uphold the decision of the High Court. He relied for this submission on the decision of the Federal Supreme Court in Laibru Limited v. Building and Civil Engineering Contractors. (1962) 1 All NLR. 387 as showing that this court had the power now to join the Jesse Clan. We do not think that decision is authority for anything of the sort. In that case, Laibru Limited as plaintiff, sought to join as co-plaintiff in the action one Mr. Ibru who had traded as “Laibru” prior to the incorporation of that company, but that application was refused in the High Court and the Federal Supreme Court held that such refusal was an error and that he should have been allowed to have been joined as co-plaintiff as no amendment to the pleadings was involved was indicated by Bairamian FJ., when at page 394 he said:-
“On the other hand, the addition of Michael Ibru as a co-plaintiff does not involve any amendment of pleadings, but only that he should have an opportunity of saying whether he would like to have an indemnity against costs from the company, and anything else he might wish to say. He should have been given notice of the appeal, as the company was asking for him to be substituted as the plaintiff or for any other order which might seem fit. We thought that, as there was no ground of substance for sending the case back for a fresh trial merely because of the mistake of not making him plaintiff in the course of the company’s evidence at the hearing in the court below, this was a proper case for making use of the provision which enables our court to direct notice to be given to a person who should have been given notice of the appeal. That provision is in Rule 5 (1) of Order 7 of the Federal Supreme Court Rules, 1961; it reads as follows:-
‘5.(1) The Registrar of the court below shall, after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal. It shall not be necessary to serve any party not directly affected. Provided that the court may, of its own motion, or on the application of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such order as might have been made if the person served with such notice had been originally parties to the appeal.’
Notice was sent to Michael Ibru to appear and say what he might wish, and also to the appellant company and to the respondents so that they, too, might have an opportunity of making any submissions they might wish to make. Mr. Ibru said that he was willing to be joined as co-plaintiff and that he did not want to have any security for costs; the appellant company did not wish to say anything; the respondents did not appear. As the learned trial Judge would have given judgment in favour of the claim but did not through a mistake of law; as the respondents did not dispute in the appeal their indebtedness; and as the mistake can be rectified now; I propose that the following order be made:- The appeal is allowed, and the judgment of the High Court of Lagos in Suit 60 of 1960 given on 28th October, 1960, is set aside; it is ordered that Michael Ibru be and he is hereby added as co-plaintiff in the Suit, and that judgment be entered for the plaintiff company and the co-plaintiff against the defendants for £822:2s:6d (Eight Hundred and Twenty-Two Pounds, Two Shillings and Six Pence) with costs in the court below to be taxed there; costs are allowed to the appellant company against the respondents (defendants) at thirty-five guineas.”
In the present case not only was no application ever made to the High Court to join the Jesse Clan as such, but we also do not see how the Jesse Clan could as such have been made a party as, so far as we are aware, it is not a legal entity and would have to be joined as a defendant through persons representing it, yet, Dr. Odje did not even suggest to us who should be so joined by this court as its representatives. On every score therefore ,we see no merit in his submission and Mr. Ororho on behalf of he 6th and 7th defendants in effect added nothing in his submission but sought to support Dr. Odje’s submission.
We therefore agree with Chief Williams that the action was improperly constituted and the appeal must on that basis be allowed. Chief Williams did however as we have said, make a further submission, namely as to the joinder of the 6th and 7th defendants as representing the Onyobru Village Community, when the learned trial Judge had already ordered the 3rd and 4th defendants to be made defendants as representing that community.
We did not really hear adequate argument on the point whether, once the learned trial Judge had made the order making the 3rd and 4th defendants represent the Onyobru Village Community, he was entitled to make a subsequent order amending his earlier order or whether he was functus officio in regard to it so that if objection was to be taken it would have to be by way of appeal.
Prima facie, we think he had no jurisdiction but as the matter was not fully argued before us, we prefer to make no pronouncement on that point and would only say that even if there had been jurisdiction here, it was clearly to our mind wrongly exercised as there was no independent evidence supporting the claims of the 6th and 7th defendants to represent the Onyobru Village Community, whilst there was a counter affidavit from independent persons supporting the right of the 3rd and 4th defendants to represent the Onyobru Village community, (compare Akande v. Araoye & Attorney-General Western Nigeria (1968) NMLR 283 at page 287) and the case of John v. Rees and Ors. (1969) 2 All ER 274 at 284 further makes it clear that whilst a person represented but dissatisfied with the person representing him might seek to have himself joined as a separate defendant, he is not so joined in substitution of the original representative but as a separate defendant so as to put forward his own view.
The appeal accordingly must be allowed and we set aside the judgment of Rhodes-Vivour, J., in Suit S/11/64 of the 25th of July, 1969, giving the plaintiffs the reliefs sought together with his order as to costs in respect of the action in the High Court. We have however anxiously considered what should be the order of this court. Chief Williams asked for a re-trial, but as the action was in our view not properly constituted, the High Court ought to have struck it out and if we now make that order it would mean the plaintiffs would be at liberty to bring a new action in a proper form without the necessity of extensive amendments to the writ and pleadings which would be necessary if we ordered a re-trial.
We accordingly order that the action be struck out and that this shall be the order of the High Court. So far as costs are concerned we order the plaintiffs to pay costs of the abortive action in the High Court in the sum of 30 guineas to the 1st and 2nd defendants, 30 guineas to the 3rd and 4th defendants and 30 guineas to the 5th defendant, but make no order as to costs in respect of the 6th and 7th defendants. In the Supreme Court, the plaintiffs will pay costs to the 1st to 4th defendants fixed at 116 guineas and costs to the 5th defendant fixed at 63 guineas and there will be no order as to costs in respect of the 6th and 7th defendants.
Other Citation: (1972) LCN/1508(SC)
