Chief P. O. Anatogu & Ors V. The Hon. Attorney-general Of The East-central State Of Nigeria & Ors (1976)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C

In Suit No. O/101/74, the twelve persons whose names were shown on the particulars of claim as plaintiffs took out a writ of summons against the Attorney-General of the former East-Central State. The claim was for:-

“1. A Declaration of Title to that piece or parcel of land on which is situate the OTU-NKWOR-EZE-ONITSHA otherwise known as THE ONITSHA MAIN MARKET, ONITSHA in this Judicial Division.

2. Possession of the said piece of land.
3. A declaration that the Deed of Lease between the Government of Eastern Region of Nigeria and the Onitsha Urban County Council which was registered as No.58 at page 58 in Volume 163 in the Lands Registry at Enugu is void and of no effect.
4. An Order of Injunction to restrain the defendant, his servants, and agents from interfering with the management and /or control of the said Onitsha Main Market, Onitsha.”

The action was instituted by them in a representative capacity, namely, “for themselves and on behalf of the Obi and the entire people of Onitsha”. This point was further emphasized in paragraph 1 of their statement of claim dated the 14th of November, 1974. It reads as follows:-

“1. The plaintiffs comprise of Red Cap Chiefs, members of Agbalanze Society of Onitsha and market women and bring this action for themselves and as representing the Obi and the people of Onitsha.”

The first defendant joined issue on this point in paragraph 1 of his statement of Defence which reads as follows:-

“1. The first defendant admits that the plaintiffs are Red Cap Chiefs and that they include some members of Agbalanze Society of Onitsha and some market women but denies that they bring the action as representing the Obi and people of Onitsha and at the trial will put the plaintiffs to strict proof of that allegation.”

Similarly, the Mgbelekeke Family averred in paragraph 1 of their Statement of Defence as follows:-

“1. The co-defendants admit that the plaintiffs are Red Cap Chiefs and that they include some members of Agbalanze Society of Onitsha and some market women but deny that they bring the action as representing the Obi and people of Onitsha and at the trial will put the plaintiffs to strict proof of that allegation.”

The Mgbelekeke Family claimed ownership of the land in dispute. They contended that they were not represented by the plaintiffs and consequently sought to be joined as co-defendants. In a reserved ruling, their application in this regard was granted by Nnaemeka-Agu, J., on the 29th of November, 1974 in the following terms:-

“I hereby order that the applicants be and are hereby joined as defendants in Suit No.0/101/74. I hereby further order as follows:-

1. That the applicants be designated second set of defendants.
2. That the plaintiffs shall within 21 days make any consequential amendments they may wish to make to their claim, and Statement of Claim, and file same for service upon the other parties to this suit.
3. That the defendant, hereinafter called the 1st defendant shall within 60 days of service of the amended statement of claim upon them file for service upon the plaintiffs and the second set of defendants their defence and other necessary documents and processes in this suit.
4. That the second defendant shall within 30 days of service upon them of the Statement of Claim and defence of the 1st defendant file their defence with plan, if necessary, and indorse them for service upon the plaintiffs and the 1st defendant.”

and for the following reasons:-

“In the result I shall grant the application of the applicants to be joined in the suit for the following reasons:-

1. Because the applicants are from among the class of people the plaintiffs purport to represent, and are now saying that the plaintiffs do not in fact represent them. Their best remedy is to join as defendants, otherwise the plaintiffs on record, being dominus litus may go ahead and get judgment which may be prejudicial to their interests. If they should stand by and are not joined, whatever judgment the plaintiffs on record get binds them.
2. Because from the uncontradicted affidavit of the applicants they have proprietory interests in the subject matter of the suit which interest on the showing of the said affidavit will be seriously and adversely affected if the applicants are not joined and the plaintiffs’ claims are established.
3. That in the circumstances of this application I consider that to make an order for joinder will settle once and for all the issue as to who have the title to the land on which Onitsha main market is situated – the whole of Onitsha, excepting the applicants, or the Mgbelekeke Family. Such an order will avoid proliferation of litigation and enable the court to settle in this suit the main issues in controversy in the suit.
4. I am satisfied that on the authorities, principles, and the criteria enunciated above, this type of application is the one contemplated by Order IV Rule 5(1) of the High Court Rules supplemented by Order 16 Rule 11 of the RSC 1959.”

It appears that on the strength of that ruling the plaintiffs filed an amended Statement of Claim on the 30th of November, 1974. Paragraph 1 of the amended Statement of Claim reads as follows:-

“1. The plaintiffs comprise of Red Cap Chiefs, members of Agbalanze Society of Onitsha and market women and bring this action for themselves and as representing the Obi and the people of Onitsha, except the Mgbelekeke Family.”

The portion underlined by us clearly shows that the plaintiffs no longer represented the Mgbelekeke Family. That was only to be expected as the Mgbelekeke Family had been joined as co-defendants in the action.

Subsequently, the plaintiffs by an application dated the 7th of March, 1975 sought leave to further amend their Statement of Claim but the application was dismissed with costs on the 17th of March, 1975.

In another motion filed on the 3rd of March, 1975 by the plaintiffs in the lower court, they sought an order to sue in a representative capacity. The motion was supported by –

(1) an affidavit sworn to by the 6th plaintiff, Chief L.O.V. Enweonwu;

(2) an affidavit sworn to by three Onitsha chiefs;

(3) an affidavit sworn to by the Secretary and Treasurer of the people of Agbalanze, Onitsha; and

(4) an affidavit sworn to by the executive members of the Ikporo-Onitsha Society comprising of the “women folk of Onitsha”.

We shall have occasion later in this judgment to refer to the contents of these affidavits, but it is sufficient at this juncture to point out that the defendants did not file any counter-affidavit even though they had been served with copies of the motion and affidavits.

After hearing arguments, the learned trial Judge dismissed the motion on the 17th of March, 1975. Whereupon, the plaintiffs lodged an appeal. At the hearing of the appeal in this court, the plaintiffs/appellants relied on the following grounds:-

“1. The learned trial Judge erred in law in dismissing the appellants’ motion to sue in a representative capacity.

Particulars of Misdirection

(a) When the substantive case came before the court on the 12th of March, 1975 the court directed that issues for determination by the court be settled pursuant to Order 32 of the Rules in force in the High Court of the then East Central State of Nigeria. (Page 130 lines 18-25).

(b) Neither of the counsel for the defendants asked for the appellants’ motion to be dismissed.

(c) The Honourable Attorney-General after drawing the attention of the court to a number of authorities including Nsima v. Ole Nnaji & Ors. (1961) All NLR 441, submitted “that it will be better…….to delay an approval until evidence is led.” , whilst learned counsel for the second set of defendants associated himself with all the submissions of learned Attorney-General.”

(Page 139 lines 28-34).

(d) Each of the defendants have in fact joined issue on the representative capacity of the appellants.

(e) Accordingly, the dismissal of the appellants’ motion is, in the circumstances, unreasonable and contrary to established practice.

2. The learned trial Judge erred in law in dismissing the motion of the appellants to sue in a representative capacity having regard to the fact that the second set of defendants were joined partly because they claimed that though they belong to the class represented by the appellants they do not wish to be so represented and they did not authorise the appellants to represent them and partly in order to have the title to the land on which Onitsha Main Market is situated determine as between the whole of Onitsha people on the one hand and Mgbelekeke people on the other.”

In dismissing the motion, the learned trial Judge made some observations about the type of evidence which should support the application (under Order 4 rule 3 of the High Court Rules of the former Eastern Nigeria) to sue in a representative capacity. He stated inter alia that –

“It is therefore necessary in a motion like this to allege and establish by at least affidavit evidence the following:-

1. That the Onitsha community owns the land in dispute. In this respect, facts should be deposed to, to show what makes up the Onitsha community and the functionaries through which that community expresses itself.
2. That all the members of the Onitsha community have the same interest in the subject and object of the present action.
3. That the named plaintiffs are members of the Onitsha community and in addition that they also have the same interest as the other members of the community in the subject and object of the suit.
4. That in view of their above common interest a meeting of the Onitsha community was held within the customary and traditional framework.
5. That at that meeting the present dispute was discussed and that at the end it was decided that a court action should be taken.

NOTE: Here it may be necessary to allege clearly the nature of the action decided upon and the kind of relief to be sought from the court.

6. That the said meeting of the community then mandated the named plaintiffs to claim in the action decided upon the relief agreed to.

NOTE:(a) The affidavit in support of the motion should contain the terms of the specific mandate given to the parties to represent the community in the action.

(b) For the purpose of easier proof the minutes of the meeting of the community and a record of the specific mandate given to the named plaintiffs should be annexed to the affidavit in support of the motion. Although in transactions under customary law writing is not necessary but there is no doubt that a document in writing does offer easier proof and also writing is becoming more universally used nowadays.

7. Since the authority to sue in a representative capacity comes from the community itself, it is necessary that most of the affidavits in support of the motion should come from important and influential members of the community and not exclusively from the named plaintiffs.”,

and criticised the motion on the following grounds:-

(1) That the Obi of Onitsha was not named as a plaintiff; and

(2) That it was difficult to find the class or group the plaintiffs were representing.

The learned trial Judge then premised his final conclusions with the followings observations:-

“In this case the Obi of Onitsha may be a distinct and easily identifiable person but the writ did not mention the Obi of Onitsha. It simply mentioned the Obi. Who is the Obi Is it the Obi of Nnewi or the Obi of where The writ should have been more definite and more precise in describing him as ‘the Obi of Onitsha’ if he is the person referred to therein. Also the expression means those born in Onitsha or those living in Onitsha or those born of Onitsha parents not minding where they live A party seeking to represent a class should endeavour to accurately define that class and what constitutes membership of that class or group or community.”,

and concluded the ruling in the following terms:-

“In the final result it is my view that this motion had not been carefully thought out and has not been properly presented. The affidavits filed do not contain enough material averments. But by far the most fatal and damaging aspect is that as it now stands the motion is praying for the named plaintiffs to represent the ‘entire people of Onitsha’ which incidentally includes the co-defendants of the Mgbelekeke Family. Such a motion cannot be granted, it should be dismissed and I hereby dismiss it.”

Before us on appeal, learned counsel for the plaintiffs/appellants in reference to Mgbelekeke Family conceded that a good ground for joinder is an objection to being represented by the plaintiffs. He argued that as the defendants did not deem it necessary to file any counter-affidavit, the evidence before the court consisted of the four affidavits referred to earlier in this judgment. He referred us to the contents of the affidavits, and in particular to the averments:-

(1) that the decision to institute the action was taken at a meeting held at Ime-Obi on the 21st April, 1974;

(2) that Obi of Onitsha presided at the meeting which was attended by the entire Onitsha people; and

(3) that the plaintiffs were authorised at the meeting to institute the action.

Counsel then pointed out that, in the lower court, the defendants’ counsel were at one in submitting that –

“it will be better at this stage to delay an approval until evidence is led.”

They did not contend that the motion ought to be dismissed but were only asking that consideration of the motion be deferred until oral evidence had been adduced in the substantive action.

Mr Ezeuko for the 2nd set of defendants/respondents supported the ruling of the lower court. It was his submission that one of the essential conditions which an applicant seeking approval to sue in a representative capacity under Order 4 Rule 3 must satisfy is that he had received authority to sue from the class of people he purports to represent. It was also his contention that the plaintiffs in this case had failed to satisfy this condition, and that their application was therefore rightly dismissed.

When the title of the Writ of Summons is read along with paragraph 1 of the amended Statement of Claim, it appears to us that the class sought to be represented by the plaintiffs has been described with sufficient clearance and precision. We are in no doubt that the expression –

“For themselves and on behalf of the Obi and the entire people of Onitsha.”

on the writ means –

“For themselves and on behalf of the Obi of Onitsha and the entire people of Onitsha.”

The learned trial Judge was therefore clearly in error when he stated that the writ did not mention the Obi of Onitsha.

Now, Order 4 Rule 3 of the High Court Rules provides as follows:-

“3. Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the court, be authorised by the other persons interested to sue or to defend in such suit, for the benefit of or on behalf of all parties so interested.”

The rule as to representative actions was derived from the Court of Chancery which required the presence of all parties to an action so as to put an end to the matters in controversy. The practice was, however relaxed in due course as in 1876, it was stated in Commissioners of Sewers of the City of London v. Gellatly (1876) 3 Ch.D.610 at page 615 that –

“Where one multitude of persons were interested in a right, and another multitude of persons interested in contesting that right, and that right was a general right – and it was utterly impossible to try the question of the existence of the right between the two multitudes on account of their number – some individuals out of the one multitude might be selected to represent one set of claimants and another set of persons to represent the parties resisting the claim, and the right might be finally decided as between all parties in a suit so constituted.”

The rule has been described as “a rule of convenience only” (See Harrison v. Abergavenny (Marquis of) (1887) 3 TLR 324 at page 325); as a rule that was originated for convenience, and for the sake of convenience, it has been relaxed. (See Bedford (Duke of) v. Ellis (1901) AC1 at page 8). It is a rule which ought not to be treated as rigid but as a flexible tool of convenience in the administration of justice. (See John v. Rees (1969) 2 WLR 1294 at page 1306).

The scope of Order 4 rule 3 allows all persons having a common right which is invaded by a common opponent to seek approval to join in attacking that common opponent in respect of the common right provided the essential conditions set out in the rule are satisfied.

In the instant case, the facts deposed to in the affidavits in support of the motion remain uncontradicted. Given the con of the intricacies of our customary land tenure, there can be no question that a representative action is eminently appropriate in the present case. In our view, the motion comes within the scope of Order 4 rule 3 and ought to have been granted. This case is readily distinguishable from the case of Nsima v. Nnaji & Ors. (1961) 1 All NLR 441, as in this case, quite apart from the Mgbelekeke Family who have been accommodated as the second set of defendants, no disgruntled member of the group purported to be represented by the plaintiffs has emerged to raise any opposition or to indicate the existence of adverse interests.

The appeal against the dismissal of the motion to sue in a representative capacity must therefore succeed and it is hereby allowed. The ruling on that motion given on the 17th of March, 1975 together with the order for costs is hereby set aside and in its stead, the authorisation of the plaintiffs to sue in the present action for themselves and as representing the Obi and people of Onitsha (except the Mgbelekeke Family) is hereby approved in pursuance of the provisions of Order 4 rule 3. It is hereby ordered that the second set of defendants/respondents shall pay N356.00 to the plaintiffs/appellants.

As this action is at present constituted, the plaintiffs are suing for themselves and as representing the Obi and people of Onitsha (except the Mgbelekeke Family). Any persons still claiming not to be represented by the plaintiffs have adequate remedies in law which they are entitled to pursue if they are so advised.

After filing the appeal which we just considered, the plaintiffs sought an adjournment of the substantive action in the lower court pending the determination of their appeal. The application for adjournment was refused on the 26th of May, 1975 and the court asked the plaintiffs to call their witnesses. What transpired thereafter will be better appreciated if the proceedings for the day are reproduced. They are as follows:-

“RESUMED ON MONDAY, THE 26TH DAY OF MAY 1975

SUIT NO. O/101/1974:

Chief P.O. Anatogu & Ors.

v.

Hon. Attorney-General & Ors.

Parties present. Appearances as before.

Mr. Anionwu says I have consulted my clients after the court’s ruling this morning and they gave me precise instruction to inform the court that they will not go on with the case in view of the ruling this morning and the previous rulings of the court. They will rather await the hearing of their interlocutory appeal. The reasons given by the plaintiffs for their refusal to go on are as follows:-

1. That each of the named plaintiffs has taken up this matter on the mandate given to him by the entire Onitsha community.
2. That when the mandate was given to them it was under the auspices of the Obi of Onitsha who has since written a letter to the court without copying and informing the named plaintiffs.
3. Plaintiffs also say that in spite of 1 and 2 above they would have liked to renew and test their mandate again before going on, but they are now precluded from doing that by the operation of Edict No.1 of 1975 which prohibits the meeting of any 3 people either in a public or private place.
4. Having regard to all the foregoing, the plaintiffs think that the only way they could meet the above limitations was by what we have done: that is asking for adjournment which the court refused in its ruling this morning. Mr. Anionwu again emphasises that plaintiffs’ case is ready for hearing but that he cannot go on because of all the reasons given above. Asks the court in the interest of justice to grant the plaintiffs an adjournment in spite of the court’s ruling this morning. He repeats that the plaintiffs have no personal interest in this suit.

Dr. Onwuamaegbu replies – Asks court to dismiss the action if plaintiffs refuse to go with the case.

REASONS:

1. By the ruling given this morning plaintiffs are not precluded from proving their authorisation.
2. They are in duty bound to protect Onitsha communal property.
3. Says the question of Edict does not apply, because the Edict has a provision giving the Resident power to grant permission. Nothing to show that Resident refused to grant them permission to meet for the purpose of this case.
4. Plaintiffs say that their action is ready but say they will not go on because of the reasons given.

Emphasis is in the deliberate assertion that they will not go on. Asks court to apply Order 42R High Court Rules and regard plaintiffs’ case as closed. Refers court to 30 Halsbury 3rd Edition page 41, article 774. Refers also to Robinson v. Chadwick (1887-8) 7 Ch.878. Refers also to Nwachukwu & Ors. v. Nze & Ors. (1955) 15 WACA 36 and submits that whether the case is for discontinuance or adjournment once called upon to proceed, case should be dismissed. Submits that plaintiffs have not even asked for a definite date for the adjournment. Submits that adjournment is a matter of discretion. Refers to 5 FSC 19; A.C.B.Ltd. v. Agbanye and Order 38 rule 1. Submits that granting an adjournment is tantamount and asking the court to review its ruling this morning. This will happen if new facts are available or if the ruling is per incuriam. Reasons given by Mr. Anionwu do not contain any new ground and they do not make adjournment necessary in the interest of justice. Asks that suit be dismissed with costs. Order 2 rule 12 Sheriffs and Civil Processes Rules.

Mr. Ezeuke – It is not open either to the parties or the court to reopen the issues already settled. Reasons now given were those considered in the ruling. Order was made that plaintiffs will proceed. If they refuse to obey the order to proceed, no matter what reasons he gives, it still amounts to refusal to go on. It is not open even to the court to reopen a point on which it had already ruled. Court has become defunctus officio. Only course open to the court is an order of dismissal for non-obedience of an order to go on.

Refers to Order 27 rule 1 RSC 1957. Court has inherent jurisdiction to dismiss for disobedience of its own order. Relies on 15 WACA 36, Ilona v. Dei (1971) 1 All NLR p.8. Asks that case be dismissed.

Anionwu replies – Says that if court cannot grant the adjournment asked for the proper order should be one for striking out not dismissal.

Court: Can I have your views on Nwachukwu v. Nze: 15 WACA 36

Ans: This is not a motion for discontinuance. Court should before deciding on striking out or dismissal consider the reasons given by the applicant.

Ruling adjourned 5th June, 1975.”

For the reasons stated in the ruling given on the 5th of June, 1975, the learned trial Judge did not accede to the plaintiffs’ request. He considered that the proper order which the facts and circumstances of the case warranted was one for dismissal and he dismissed the plaintiffs’ claim with costs.

The plaintiffs have also appealed against the order for dismissal of their claim. But in view of the conclusion that we have reached on the appeal against the refusal of the order for representation, both counsel have submitted, and we agree, that the appeal against the said order for dismissal must be allowed as it seems clear that if the learned trial Judge had not erroneously refused the order for representation, the events would not have led to the pronouncement of the order complained about.

In the result, it is hereby ordered that the ruling of the lower court given on the 5th of June, 1975, be and is hereby set aside together with the order for costs. There will be no further order as to costs in this court in respect of this appeal.

Finally, subject to the foregoing orders, the case is remitted to the lower court for continuation of hearing.

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Other Citation: (1976) LCN/2191(SC)