Chief Ojogbo, Olaja-oriri Of Ugborodo & Ors V. Itsekiri Communal Land Trustees & Ors (1973)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C
This suit was commenced in the Warri High Court by originating summons in which the Itsekiri Communal Land Trustees (as plaintiffs) have brought the people of the Ugborodo and Ogidigben to court to determine who are entitled to a certain sum of money which had been ordered to be deposited in court in another suit then pending in the Warri High Court.
On the face of the summons, one Dick Olueh (1st defendant), Ojogbo Erugbokuo (2nd defendant), Amorighoye Okpe (3rd defendant), and Tsuku Ejuetami (4th defendant) were shown as representing the people of Ugborodo and Ogidigben. Pleadings were ordered on 9th June, 1969. Before these were filed, however, the plaintiffs made two applications to the court, one for extension of time within which to file their statement of claim, the other that one Babine Ereku (now 2nd respondent), Olleh Akpienyi (now 3rd respondent) and Aniretoronwa Okotie-Uro (now 4th respondent) be substituted for the 1st, 2nd and 3rd defendants to defend with the 4th defendant the matter in the originating summons for and on behalf of the people of Ugborodo and Ogidigben. It must be pointed out that Amorighoye Okpe (the 3rd defendant) had died before the application for substitution. We must also mention at this stage that at no time up to the date of that application was any of the original defendants authorised by the court in accordance with the provisions of Order 7 rule 9 of the Western State High Court (Civil Procedure) Rules (which is still applicable in the Mid-Western State) to defend the action for themselves and on behalf of the people of Ugborodo and Ogidigben. As a result, the learned trial Judge treated the application as one in which the plaintiffs were asking the court to authorise certain persons to represent the Ugborodo and Ogidigben community in the claim before him.
The plaintiffs filed an affidavit in support of their application and the defendants who were being removed filed a counter-affidavit in which they clearly opposed the motion. After considering the application, the learned trial Judge, on 24th October, 1969, ruled, inter alia, as follows:-
“The 1st and 2nd respondents have no application in court asking that they be made to represent the community. Their case as I see it is that the applicants having originally intended to have them as representing the community must now not recant. There appears to be some disagreement among members of the community and so I do not propose to call a community meeting to decide who should represent the community as was done in London Association etc. v. Greenland Ltd. (1916) 2 AC 39. To do that will produce claims and counter-claims. It is clear to me that the Ugborodo and Ogidigben people are numerous and that they must therefore be represented in this matter. It is not suggested by Dick Olueh and those in his camp that the people put forward are not fit and proper persons to represent the community. In fact I am left in no doubt that they are. There is no application asking that Dick Olueh be made to represent the community. But if he and those in his camp feel that their interest in the community in this matter will not be adequately protected they have their remedies and I am prepared to entertain their application to be joined.
For now, those put forward appear to me to have authority to represent the community and I hereby order that Babine Ereku, Olleh Akpienyi, Aniretoronwa Okotie-Uro, and Tsuku Ejuetami do represent the people of Ugborodo and Ogidigben in this matter and that the title of the summons be amended accordingly.” (The underlining is ours).
An application by the two defendants (who still described themselves as the defendants in the title of the application) for leave to appeal against the above order was struck out on 12th December, 1969, after the learned trial Judge had observed as follows:-
“But to insist on being shown as parties on the court’s records the way they now do, appears to me to be conduct deserving of some blame. This application will be struck out in its entirety.
It is unfortunate that this does mean that the applicants will now have to go to Lagos to obtain an order from the Supreme Court enlarging the time within which to give a fresh notice of their application to seek leave to appeal, the prescribed time for giving the notice having lapsed; then armed with the Supreme Court Order enlarging the time, return to seek in this court leave to appeal; a process which no doubt will involve them in more trouble and expenses unless the Supreme Court grants them leave regardless of Order 7 rule 37.”
The two replaced defendants, it must be pointed out, neither applied to be joined as parties as suggested earlier by the learned trial Judge, nor did they apply to the Supreme Court for extension of time within which to apply for leave to appeal against the order of 24th October, 1969, by which they were replaced. Instead, they just stood by and allowed the case to go on until the parties reached a settlement and the terms of settlement had been filed in court and judgment given by consent in accordance with the terms of settlement on 22nd December, 1969.
Thereafter, Dick Olueh and Ojogbo Olaja-Oriri (that is, the two defendants who have been replaced) “for themselves and on behalf of Ugborodo and Ogidigben people,” applied ex parte to the Warri High Court on 23rd March, 1970, for leave to appeal against the consent judgment of 22nd December, 1969. The application was supported by an affidavit sworn to by counsel for the two defendants. Paragraphs (8) of the affidavit reads:-
“(8). That our clients’ application for leave to appeal to the Supreme Court against the Order removing them from the proceedings as representatives of the people of Ugborodo and Ogidigben has not been heard by the Supreme Court.”
As a matter of fact, no such application was pending in the Supreme Court at the time and the learned counsel for the appellants in this appeal admitted that much in the course of his arguments in this court. As the application was made ex parte, the learned trial Judge was probably unable to check the truth or falsity of the above averment which might have affected his decision to grant the two replaced defendants leave to appeal. Be that as it may, he rather reluctantly, granted the application after observing as follows:-
“Under Section 117 (6) (a) the applicant seeking leave to appeal is a stranger to the case and if the court must give him leave he has to swear to the affidavit in support of his motion and disclosing his interest and come to court to prosecute his application. These have not been done by the alleged applicants. However not wishing to be accused of depriving Mr. Boyo the chance of stating his case on appeal I grant him leave to file his appeal papers accordingly.”
Pursuant to this order, the two displaced defendants have now appealed to this court, not against the order of 24th October, 1969, by which they were replaced, but against the consent judgment of 22nd December, 1969. It will be recalled that the four defendants who consented to the judgment did so “for themselves and on behalf of the people of Ugborodo and Ogidigben” who must be presumed to include the two replaced defendants. In other words, these two replaced defendants are appealing against a judgment agreed to by their representatives, on their behalf, and to their knowledge. This anomalous situation is made clearer by the title of the Notice of Appeal which shows the replaced defendants “for themselves and on behalf of the people of Ugborodo and Ogidigben” as appellants and the four defendants who replaced them also for themselves and on behalf of the same community as respondents!
The six grounds of appeal filed by the appellants read:-
“(1) The learned trial Judge erred in law in making an order directing that the sum of 13,708 pounds:6:8d. (ordered by the Supreme Court in Suit No. SC. 21/69 to remain in the Warri High Court pending the determination of an appeal by the Itsekiri Communal Land Trustees to the Supreme Court in Suit No. W/27/68) be paid out to the Itsekiri Communal Land Trustees when (a) the said appeal by the Itsekiri Communal Land Trustees and a cross-appeal therein were pending in the Supreme Court
(b) all that the learned trial Judge was called upon to do in the proceedings before him was to determine the issues raised in the originating summons before him and adjudicate thereon.
(c) the said sum of 13,708 pounds:6:8d. was not deposited in Court or ordered to remain in Court, pursuant to an order made in the suit before him.
(2) The learned trial Judge erred in Law when he authorised the defendants/respondents to defend this action for themselves and on behalf of the people of Ugborodo and Ogidigben on 24th October, 1969, in place of the appellants in that –
(a) the application before the learned trial Judge on that day was one to substitute the defendants/respondents for the appellants.
(b) the jurat to the counter-affidavit sworn to by the appellants in opposition ot the affidavit filed by the defendants/respondents in support of the application to substitute them for the appellants and the jurat to the counter-affidavit sworn to by the elders and exhibited to the said counter-affidavit did not offend the provisions of Section 89 (g) (vi) of the Evidence Act.
(3). The learned trial Judge misdirected himself in law in holding that the aforesaid counter-affidavit were not affidavits in law.
(4) The learned trial Judge misdirected himself in law in proceeding to hear the application by the plaintiffs/respondents to substitute the defendants/respondents for the appellants immediately after striking out the afore-mentioned counter-affidavit without granting the appellants an adjournment to enable them swear to other counter-affidavits in that by so doing the learned trial Judge did not exercise his judicial discretion in the matter of an adjournment, judicially.
(5) The learned trial Judge misdirected himself in law in deciding to authorise the defendants/respondents to defend the suit for themselves and on behalf of the people of Ugborodo and Ogidigben in place of the appellants when he referred to an alleged letter allegedly written by the people of Ugborodo and Ogidigben to the plaintiffs/respondents when the said letter was not part of the affidavit evidence before him and after the existence and authenticity of the said letter had been challenged by Counsel for appellants at the proceedings before the learned trial Judge on 24th October, 1969.
(6) The learned trial Judge erred in law in making an order authorising the defendants/respondents to defend the suit for themselves and on behalf of the people of Ugborodo and Ogidigben in place of the appellants in that the said order was not supported by the evidence before him.”
A close scrutiny of the six grounds shows that only the first ground of appeal deals with the judgment of 22nd December, 1969, wherein, with the consent of the parties, the court directed that the sum of 13,708 pounds:6:8d. (ordered by the Supreme Court in Suit No. SC. 21/69 to remain in the Warri High Court pending the determination of the appeal in Suit W/27/68) be paid out to the Itsekiri Communal Land Trustees. The remaining five grounds deal with the order of substitution and representation made on 24th October, 1969, and in respect of which were is no appeal before this court.
Because of this, we raised the point, suo motu, as to whether the two replaced defendants (hereinafter referred to as the appellants) are competent to file grounds two to six of the grounds of appeal which relate wholly to this order of 24th October, 1969. It was also pointed out with respect to the first ground of appeal that, as a result of an order this court made subsequent to the judgment of 22nd December, 1969, the sum of 13,708 pounds:6:8d ordered by the learned trial Judge in the consent judgment to be paid to the plaintiffs (now 1st plaintiffs/respondents), has been returned to the custody of the High Court.
While conceding that the appellants had not appealed against the interlocutory order of 24th October, 1969, the learned counsel for the appellants nevertheless contended that, as “interested persons,” the appellants had the right to apply for leave to appeal against the consent judgment of 22nd December, 1969, by virtue of the provisions of Section 117 (6) (a) of the Constitution of the Federation. Learned counsel also pointed out that although they did not appeal against the earlier interlocutory order, this court could, nevertheless, adjudicate upon it by exercising our powers under the provisions of Order 7 rule 25 of the Supreme Court Rules. While admitting that the sum of 13,708 pounds:6:8d which was ordered by the High Court to be paid out in the consent judgment of 22nd December, 1969, and which now forms the basis of the complaint in the first ground of appeal has now been refunded and is back in the custody of the High Court, learned counsel finally contended that this should not stop us from hearing the appeal.
In reply, it was submitted on behalf of the respondents that, in view of the admissions made by learned counsel for the appellants, the appellants had no locus standi in this court. Although they could have applied to the Supreme Court for leave to appeal against the order of 24th October, 1969, which denied them representation, the appellants never exercised that right. It was also pointed out that the judgment of 22nd December, 1969, against which they have obtained leave to appeal, is a consent judgment agreed to by the duly authorised representatives of the appellants’ community. Being fully aware of what was going on, they were estopped from appealing against that judgment. Learned counsel also confirmed our observation that, of the six grounds of appeal, only the first ground dealt with that judgment of 22nd December, 1969, while the remaining five dealt with the interlocutory order in respect of which there has been no appeal. Learned counsel then referred to the part of the judgment of this court in Suit SC. 21/69 delivered on 21st May, 1971, which showed that the sum of 13,708pounds:6:8d. is now back in the custody of the Warri High Court. Finally, it was submitted that the appellants could not invoke the provisions of section 117(6) (a) of the Constitution as that section is not intended for persons who had been parties to the action at some state.
Notwithstanding the leave sought and granted in the Warri High Court to the two appellants to appeal against the judgment of 22nd December, 1969, we are unable to follow the reasoning of the learned trial Judge in regarding them as “interested persons’ within the meaning of Section 117 (6) (a) of the Constitution of the Federation after he had advised them in his ruling of 24th October, 1969, to apply to be joined as defendants and they have apparently refused. The appellants were in the case right from the start. They were replaced by another set of defendants by order of the court which heard the case. They ignored the court’s observation that any application brought by them to be joined as defendants in their own right would be entertained. They did not appeal against the order replacing them. They stood by and watched the proceedings to finality. Thereafter, they asked to be granted leave to appeal as “interested persons.” To claim to be “interested persons” as they have successfully done in this case, is a gross abuse of the process of the court and contrary to the purpose and intent of Section 117 (6) (a) of the Constitution. The Section reads:
“117(6)(a). Any right of appeal to the Supreme Court from the decisions of the High Court of a territory conferred by this section –
(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto or, with the leave of the High Court or the Supreme Court at the instance of any other person having an interest in the matter…..”
The phrase “at the instance of any other person having an interest in the matter” is clearly not intended to apply to a person who stands by and allows his battle to be fought, to his knowledge and on his behalf, by the other members of his community and who then applies, because he does not like the judgment, for leave to appeal against it. Incidentally, the circumstances in which the section has been successfully invoked in this court will be found in our judgment in Sun Insurance Office Ltd. v. Victoria O. Ojemuyiwa (1965) 1 All NLR 1 at pages 3-5, but the facts of that case are certainly not in pari materia with those of the case in hand. Because the facts of the case in Jarmakani Transport Ltd. v. Alhaji Kalla (1965) 1 All NLR 77 at page 79, are also different, this court refused an application for leave to appeal made under the section by a person who claimed to be an “interested person.’
Be that as it may, the leave granted to the appellants, as we have pointed out earlier, was in respect of the consent judgment of 22nd December, 1969. It did not apply to the interlocutory order of 24th October, 1969. That being the case, the appellants, in our view, are not competent to file grounds two to six of the grounds of appeal which are clearly misconceived and are accordingly struck out. In coming to this conclusion, we are not unaware of the provisions of Order 7 rule 25 of the Supreme Court Rules that no interlocutory order from which there has been no appeal shall operate so as to bar or prejudice this court from giving such decision upon the appeal as may seem just. However, in view of the surrounding circumstances of this case, it does not “seem just” to us to allow the appellants to re-open the matter of representation, through the back door as it were, in respect of which they had unsuccessfully sought leave to appeal.
As for the first ground of appeal, it is common ground that the sum of 13,708 pounds:6:8d has now been returned to the custody of the Warri High Court. This is also confirmed in the judgment of this court in Dick Olueh & five ors. v. Itsekiri Communal Land Trustees (SC.21/69 delivered on 21st May, 1971). In other words, the complaint in that ground of appeal as to the order for withdrawal of the money has been overtaken by events. No useful purpose will be served, therefore, by ventilating that complaint in the appeal now before us. That ground of appeal is also struck out.
As there remains no arguable ground of appeal before us, the appeal against the consent judgment of the Warri High Court in Suit No. W/46/69 delivered on 22nd December, 1969, is dismissed with costs to each set of respondents assessed at N92.
SC.149/1972
