Ofem Odey, Etc. V. Ovat Edim, Etc (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Case started in Native Court transferred by District Officer to High udgmalenfrtOnil Court; parties appear in writ in individual and not in their kigi, court. representative capacities—No amendment—Suit transferred undersection 25 (1) (c) of Native Courts Ordinance No. 44 of 1933—Pleadings ordered and plaintiff avers parties are suing and sued in representative capacity–Power of Court below to make an amendment effecting change in capacities of parties to transferred suit—Judgmtnt baser on parties appearing in representative capacities.

Held : That as it is doubtful whether if formal application had been made to amend it would have been possible to grant it the whole trial must be treated as a nullity.

The facts are sufficiently set out in the judgment.

W. Palmer for Appellant.

0. 0. Alakija for Respondent.

The following joint judgment was delivered :-.–

KINGDON, C. J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

This case was commenced in the .Native Court of Olulumo in which Court it was No. 11 of 1938. A.,,copy of the original writ of summons forms part of the record of appeal and in that writ it is clear that the parties appear in their individual and not in their representative capacities. There is nothing in the record of appeal, nor can either Counsel refer us to anything, to show that there was ever any amendment of the writ in this respect in the Native Court.

By virtue of section 25 (1) (c) of the Native Courts Ordinance No. 44 of 1933 the suit was transferred by the District Officer to the High Court of-Enugu judicial Division. The first proceeding in the suit in that Court was apparently on 18th April, 1938, when plan and pleadings were ordered. A copy of that order appears in the Record of Appeal and in the heading of that the heading of the suit is given as ” Ofem Odey on behalf of himself and the people of Olulumo plaintiff versus Ovat Edim on behalf of the people of Akam.”

Neither Counsel was able to explain how the heading of the suit came to be so altered.

In his statement of claim the plaintiff averred that he way suing in his representative capacity and that the defendant wa^, sued in his representative capacity. The defendant in hi±. statement of defence denied this and averred that plaintiff, by the writ of summons served on defendant, sued in a personal capacity and not in a representative capacity and that the defendant was also sued in a personal capacity. That issue of fact between the parties was apparently never resolved in the Court below and the only evidence on the point before this Court is the copy of the original writ’ in which it appears that the parties both are in their personal capacity.

In view of the majority decision of this Court in Maim v. Wulf (III W.A.(‘.A. Reports p. 232) it is doubtful whether the Court below had the power to make an amendment effecting a change in the capacities of the parties to the transferred suit, even if it had been asked to do so. It does not appear that it was asked to make such an amendment or that it did in fact do so. The judgment of the Court below was, however, baSed on the parties appearing in their representative capacities.

When the agreement founded upon by the plaintiff-appellant was referred to by his Counsel in opening his case Counsel for the defendant objected inter alia on the ground that the suit wa^, between the parties in their representative capacities and that the agreement is between parties themselves. At the close of the plaintiff’s case Counsel for the defendant addressed the Court submitting that there was no case for him to answer and in referring to a judgment and the agreement produced by the plaintiff he said ” Native Court judgment was a judgment obtained against an individual. No privity. In agreement—the grantee was in personal and not representative capacity* The judgment and agreement cannot bind the tribe.” –

It is difficult, in fact impossible, to reconcile the pleading of the defendant’s Counsel at the bar of the Court below with paragraph 2 of his statement of defence. It is impossible to avoid the conclusion that he had tacitly abandoned paragraph 2 of his statement of defence. In fact it is clear that Counsel for both parties, and the Court, treated the suit throughout the trial as one between the parties in their representative capacities. That is to say that they all quite wrongly and inexplicably assumed that the writ of summons had been amended so as to put each party in a representative capacity.

If the case had originated in the lower Court, we should have been inclined to hold that there was such a plain assumption by both parties–and by the Court—that the writ of summons had been amended as we have indicated ; that the whole trial and

arguments of Counsel had proceeded by common consent in the Court below on the basis that both parties were there in their representative capacities ; so that this Court must deal with the case as if the necessary amendment had been made.

But since it is doubtful whether, if formal application had been made to amend, it would have been passible to grant. it, we cannot hold that the matter should be treated as though the amendment had in fact been made when it had not.

It seems to us that the only course for this Court to adopt is to treat the whole trial as a nullity. The judgment of the Court below including the order as to costs is set aside. Each party is to bear his own costs in the Court below, and in this Court.