Okputu Obiode & Ors V Ukpe Orewere & Ors (1982)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C.

This is an appeal against the decision of the Federal Court of Appeal which reversed a decision of the Bendel State High Court, Ughelli. In 1971, the plaintiffs (now respondents) brought a representative action against ten defendants (six of whom are now the appellants).

As a preliminary step, the plaintiffs applied to the High Court under Order 7 rule 9 of the Bendel State High Court (Civil Procedure) Rules (Cap. 65 of the Laws of Bendel State of Nigeria, 1976) seeking leave for the defendants to defend the action for themselves and on behalf of the people of Owodokpokpo village, Igbide in Isoko Division.

The following ruling was given: “For the representation to be effective, the named defendants should have an opportunity for consultation and discussions on matters affecting the action with the class of people they are ordered to represent. Further the representative of that class should also be able to control the proceedings in the interest of their people. Where such opportunity is not available for the represented to have consultations with their representatives, it is my view that it would be most improper for a representation order to be made.

Applying the above tests to this application, I am clearly of the view that it is inequitable unfair (sic) for the people of Owodokpokpo who are going to be bound by the judgment in this case to be represented by 4th-10th defendants with whom they have not been shown to have any access; and who may also, as a result of the physical handicaps caused by their imprisonment, not be able to contest the action effectively.

In this circumstance, I hereby refuse the order in respect of 4th-10th defendants. The order of this court is that leave is granted for the 1st -3rd defendants only to defend the action for themselves and on behalf of Owodokpokpo village people in Igbide Isoko Division. The order is refused in respect of 4th-10th defendants who are to defend the action for themselves only. Leave is hereby granted to the plaintiffs to file and serve an amended writ of summons setting out the new title of the action within fourteen days.”An amended writ of summons was filed in accordance with the ruling, except that the title of the suit as originally contained in the writ was left unaltered.

That is to say all the ten defendants were again shown as defending the action for themselves and on behalf of the people of Owodokpokpo village. The same error was compounded in the statement of claim and the statement of defence filed by the plaintiffs and the 1st, 2nd and 3rd defendants respectively. However the 4th to the 10th defendants who filed a joint statement of defence (after their application for enlargement of time was granted) used the correct title by showing themselves as defending on their own behalf only.

Subsequently, the case was heard and at its conclusion the claim against all the defendants was dismissed by the High Court. Not satisfied with the decision the plaintiffs appealed to the Federal Court of Appeal. The appeal succeeded in part. That is to say while judgment was given to the plaintiffs against the 4th to the 10th defendants; the appeal against the 1st, 2nd and 3rd defendants was dismissed. Although before us five grounds of appeal were filed, one of which is additional, Mr. Lardner, learned counsel for the appellants based his argument on two questions which he said encompassed all the grounds. These are:

(1) Whether the proceedings in the High Court after the representation order was made is valid vis-a-vis the appellants, in view of the fact that the appellants, as the people of Owodokpokpo village, were already being represented by the 1st, 2nd and 3rd defendants.

(2) Whether (assuming that the proceedings were valid) the evidence adduced by the plaintiffs proved the case against the 4th to the 10th defendants as alleged in the statement of claim.

Arguing the first point, learned counsel for the appellants contended that the proceedings against the 4th to the 10th defendants were not valid because the plaintiffs in bringing a representative action against the 1st, 2nd and 3rd defendants on behalf of the people of Owodokpokpo village could not maintain the same action against the 4th to the 10th defendants who belonged to and were members of the same village. He submitted that although Order 7 rule 9 of the High Court (Civil Procedure) Rules, allows for a joinder of persons to represent a community, it does not allow for action against individual members of the community whilst the community is being sued as a whole. The following cases are cited in the appellants’ brief in support of the argument: Lawal v. Chief Dawodu and Anor., [1972] 1 All N.L.R. (Part 2)270; Amanambu v. Okafor and Anor., [1967] N.M.L.R. 118 and Obasi and Ors. v. Chief Oti and Anor., [1967] N.M.L.R. 74 at p.75.

Dr. Odje, learned counsel for the respondents replied shortly by relying on the respondents’ brief. The precis of the argument in the brief is that it is now too late for the appellants to raise the issue of the validity of the proceedings as it affected them since they failed to take up the point before the High Court and the Federal Court of Appeal: Dokubo v. Bob-Manuel, [1967] 1 All N.L.R. 113 at p. 121; Bulai v. Omoyajowo [1968] 1 All N.L.R. 72 at p.79 and Anatogu and Ors. v. A-G of East Central State of Nigeria and Ors., (1976) 11 S.C. 109 at 124; and that on the authority of Djukpan v. Orovuyovbe, [1967] 1 All N.L.R. 134 at p. 137 this Court does not readily allow a fresh point of law to be argued before it if the point was not previously taken in the courts below. The brief asserts further and in the alternative that the order of representation made by the learned trial judge is proper because Order 7 rule 9 “is not rigid but a flexible tool of convenience in the administration of justice”: John v. Rees, [1969] 2 All E.R. 274 at p. 283; Nta and Ors. v Anigo and Anor. [1972] 1 All N.L.R. (Part 2) 74 at p. 84 and Anatogu’s case [supra]. Now Order 7 rule 9 provides as follows: “Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested. ” (emphasis mine).

It is not in dispute that the point on the validity of the proceedings as it affected the appellants was not raised in any of the courts below. This was in fact conceded by Mr Lardner in the appellants’ reply brief. Relying on Shonekan v. Smith, [1964] N.M.L.R. 59 at p. 63 learned counsel for the appellants submitted that the appellants’ ground of appeal “affects the very validity or valid existence of the proceedings against the 4th to the 10th defendants:” and that since there is no reported case on the point, this Court should allow the point to be argued. It is indeed a well established principle that this Court does not approve that points which could or ought to have been taken in the courts below should be raised for the first time before it.

However the rule is subject to a number of exceptions, some of which have been copiously set out in Djukpan’s case (supra). Suffice it to say that the violation of some principles of procedure or their neglect, which if corrected, the decision in the case cannot stand, has been held to be an exception to the rule; see Stool of Abinabina v. Enyimadu, 12 WACA 171 at p.173. If Order 7 rule 9 is read disjunctively it will appear that, firstly, where many people have a common interest in a case one or more of them may be sued; and secondly, one or more of them may be authorised to defend the case on behalf of all of them.