Lawrence Okafor & Ors V. Felix Nnaife & Ors (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C

The present appellants were the second set of defendants in an action filed by the respondents, as plaintiffs, in the High Court Onitsha. The plaintiffs are described on the writ as follows:-
“Felix Nnaife for himself and on behalf of the family of Umuokwe Ezinkwelle.”and the claim, as endorsed on the writ, is for –

“(1)  A declaration that the defendants are the customary tenants of the plaintiff and according to native law and custom cannot put tenants on the plaintiff’s land or farm on the plaintiff’s land without obtaining plaintiff’s permission.

(2)  300 pounds damages for trespass in that the defendants acting in concert put tenants on the plaintiff’s land and cut plaintiff’s economic trees and farmed on portions of plaintiff’s land without obtaining plaintiff’s consent.

(3)   Injunction to restrain the defendants from putting tenants on the plaintiff’s land or doing things on the plaintiff’s land inconsistent with their position as customary tenants.”

The writ was shown as having been filed on the 15th February, 1960. The defendants shown and endorsed on the writ, as originally filed, were eight as follows:-
1. Charles Ogadike
2. Augustine Okonkwo
3. Nwugo Anaeto
4. Reuben Ofodile
5. Nwokwu Nwosu
6. Reuben Osameke
7. Stephen Okeke
8. Nwefi Okeke
9. Ikemma Okonkwo

They are the first set of defendants to this case. On the 8th June, 1960, and obviously in pursuance of an Order of Court to that effect, the plaintiffs filed and delivered a Statement of Claim in which they described the land in dispute as situate at Nkwele Ezunaka loosely divided into three portions or parcels of Ugwu Ochichi Ugwuoma and Oghundo lands. The Statement of Claim also described the first set of defendants as descendants of plaintiffs’ original customary tenants to whom specific portions of lands were severally allocated for farming purposes by the Plaintiffs after payment of tributes by them to the plaintiffs and who were now disputing the title of their overlords, i.e. the plaintiffs.

The first set of defendants, on the 12th September, 1960, filed a Statement of Defence in answer to the plaintiffs’ Statement of Claim, by virtue of which they claimed to be co-owners of Ogbundo lands with the plaintiffs as they themselves had settled thereon on the invitation of the plaintiffs’ ancestors and had established a common or joint settlement thereon. On the 10th February, 1964, the plaintiffs filed a Reply to the Statement of defence of the first set of defendants in which they disputed the claim of ownership or joint ownership of the land in dispute by the first set of defendants.  On the 5th May, 1964, and by Motion of that date, the plaintiffs applied to the court for “an order of court to join Lawrence Okafor, Augustine Achia, Nwoye Akeme and Michael Mgbemena as co-defendants in the above suit for themselves and as representing the entire Amagu Community of Nkwelle Ezunka….”. The motion was supported by an affidavit sworn to by Felix Nnaife, the representative of the plaintiffs’ people, and paragraphs 2, 3, 4,5 and 6 of the said affidavit read as follows:-

“2. That the present defendants are a Section of the Amagu Community resident in Nkwelle Ezunaka.

3. That the party sought to be joined otherwise called co-defendants are also from Amagu as well as the present defendants.

4. That the interest of the defendants and co-defendants with regard to the land in dispute is the same.

5. That the said defendants and co-defendants were put on the land in dispute by my people.

6. That the present defendants’ represent only one family in Amagu.”
Learned counsel for the first set of defendants, did not oppose the application when it was heard in court on the 11th May, 1964, and the following order was made by the court:-
“Order as prayed. I order that the amended summons and S/C/ be filed within 21 days and served as the co-defendants. Return date 15/6/64.”

Pursuant to this order, an amended Statement of Claim was filed by the plaintiffs on the 20th May, 1964. This Statement of Claim contains similar averments to those contained in the Statement of Claim filed in respect of the first set of defendants on the 8th June, 1960, as well as the following specific averments concerning the second set of defendants – who are the present appellants – in paragraphs 2, 3, 9 and 10 thereof thus:-

“2. The first set of defendants are sued personally.

3. The 2nd set of defendants are sued for themselves and as representing the Amagu community settlement of Nkwelle Ezinkwelle.

9. The second set of defendants are the customary tenants of the Plaintiff.

10. The second set of defendants contrary to their position as customary tenants claim the right to put tenants on the land without reference to and without the consent of the plaintiffs.”

By another order of the court, the first set of defendants duly amended and served their Statement of Defence on the present appellants, i.e. the second set of defendants. In course of time, the appellants filed and delivered their Statement of Defence by which they aver in substance that they are in complete control and possession of Ogbundo lands and that there was an outright grant to them of the land by the ancestors of the present plaintiffs as far back as 1903. Their Statement of Defence denies in parts the claims of the first set of defendants to the ownership of Ogbundo lands to the plaintiffs. The Statement of Defence of the appellants further pleads res judicata in respect of claims for damages as between them and the plaintiffs.

The case went for trial before Kaine, J. (High Court, Onitsha) and the parties called witnesses in support of their pleadings. At the end of the day, the learned trial Judge preferred and accepted the case of the plaintiffs, found that both sets of defendants were customary tenants on the land in dispute and gave judgment in favour of the plaintiffs in respect of the second set of defendants for declaration of title and injunction and in respect of the first set of defendants for declaration of title, 20 pounds damages for trespass and an injunction. The first set of defendants have not appealed from this judgment but the second set of defendants duly filed a Notice of Appeal and the appeal is the one in hand.

A number of grounds of appeal were filed by the appellants complaining about the confused nature of the trial owing to the misjoinder of parties and attacking the findings of fact and the grant of an order of injunction in the circumstances of the case. As we are of the view that the plaintiffs’ action after the joinder of the second set of defendants was not properly constituted, we invited counsel on both sides to address us on this point. Learned counsel for the appellants was in agreement that the action was improperly constituted thereafter and learned counsel for the respondents, understandably, made some attempts to support the situation but added really little of any value to the argument against the improper constitution of the action.

It is manifest from the affidavit in support of the application to join the second set of defendants sworn to by the plaintiffs’ representative, that the first set of defendants were members of the Amagu community resident in Nkwelle Ezunaka and that they represented “only the family in Amagu.” In the statements of claim filed by the plaintiffs against the first set of defendants, as well as the second set of defendants, the plaintiffs stated that the first set of defendants were sued personally.

Paragraph 3 of the Statement of Claim filed and served by the plaintiffs on the second set of defendants states as follows:-

“3. The 2nd set of defendants are sued for themselves and as representing the Amagu community settlement of Nkwelle Ezinkwelle.”

and, in answer to this, the appellants pleaded in paragraph 2 of their own Statement of Defence –

“2. In answer to paragraph 3 of the Statement of Claim, the 2nd set of defendants say that they represent the people of Amagu Nkwelle Ezunaka.”
It is obvious, therefore, that as far as the parties are concerned, the result of the pleadings is that the action was to proceed by the same plaintiffs in respect of the same lands against two sets of defendants, one of which (i.e. the first set) is included inside the community of the second set. In those circumstances, the findings against the first set must adversely affect a part or portion of the second set of defendants and a finding in favour of the second set of defendants must also enure for the benefit of the first set even if there is an adverse finding against that first set by itself. The relevant rule concerning joinder of parties is Order IV Rule 5 of the High Court Rules (Cap. 61, Laws of Eastern Nigeria, 1963) and it proved as follows:-

“5 (1) If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case the court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons or in such other manner as the court think fit to direct, and on proof of the due service of such notice the person so served, whether, he shall have appeared or not, shall be bound by all proceedings in the cause: provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may, at any time before judgment in the suit, apply to the court for leave to appear, and such leave  may be given upon such terms (if any) as the court shall think fit.

(2) The court may, at any stage of the proceedings, and on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out.”
Thus, it is clear that whilst under the Rule the court is entitled to join those who may be likely to be affected by the result of an action, the court is not authorised to join a party in circumstances in which the defendants may not be prosecuted in the same rights. So, Order IV Rule 7 provides thus:-

“7. In case a writ states two or more distinct causes of suit, but not by and against the same parties, or by and against the same parties but not in the same rights, the writ may, on the application of any defendant, be amended or set aside, as justice may require.”

We think that the point did not easily occur to the learned trial Judge and it was fortuitous that he was able to come to the same conclusion on the facts before him with respect to, and indeed against, both sets of defendants. Had this not happened, it would have been completely impossible for him to write a judgment on the basis that the findings against the two sets of defendants are different. Learned counsel for the Plaintiffs must have seen the point for at the close of his case he made an application to the court for an amendment and in connection with this, the court notes read as follows:-

“Mr. Onyiuke applied to amend the heading of his Statement of Claim to read Lawrence Okafor, Augustine Achia, Nwoye Anene and Michael Mgbemena representing the entire Amagu community of Nkwelle Ezunaka except the 1st set of defendants.
No objection.
Application granted and amendment made accordingly.
Case for the plaintiffs.’

This amendment was not opposed and was indeed allowed at a rather late stage of the proceedings. It was however little realized by the court that a situation had been created before then in which the court was not free to make any findings which it was pleased to make. Although the amendment was asked for and was made, the pleadings were not amended in any way whatsoever and although the affidavit of Felix Nnaife, when he sought to join the appellants, stated that the interest of the first set of defendants and the co-defendants with respect to the land in dispute was the same, that statement appeared in none of the pleadings and the evidence in the case clearly belied it. We think that at that stage of the proceedings, it was time to apply the provisions of Order IV Rule 5(2) or, indeed, Order IV Rule 7.

Whatever, be the case, we are in agreement with learned counsel for the appellants that the joinder of the second set of defendants or appellants was wrong in this case and that at the time when the action went to trial with all the defendants there, it was not properly constituted. It is the duty of the court as well to see that actions before it are properly constituted.

Because we are satisfied of the misjoinder in this case, we have not allowed arguments on the other grounds of appeal or the merits of which, since, on the view which we have already taken, any discussion about the merits of the case might as well await another occasion when and after the plaintiffs would have duly made up their minds concerning the defendants whom they propose to sue.

The appeal therefore succeeds and it is allowed. The judgment of the High Court, Onitsha, in Suit No. 0/20/60, including the order for costs is set aside. It is ordered that the action be struck out and this shall be the judgment of the court. As neither set of defendants has made the application at the trial to regularize the joinder, the defendants (both sides) will not be entitled to any costs in the High Court. The appellants will, however, be entitled to their costs in this court which we fix at N110.

SC.731/1966