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.

What the learned trial judge did in the present case was to allow the appellants to be sued separately even though they have a common interest with the people of Owodokpokpo village. Notwithstanding the fact that that was not what the plaintiffs sought by their application, there can be no doubt that the procedure followed by the trial judge is consistent with the first construction of Order 7 rule 9.

In Anatogu’s case (supra) the chiefs of Onitsha brought a representative action on behalf of the people of Onitsha against the family of Mgbelekeke and the Attorney-General of the erstwhile East-Central State of Nigeria. The Family of Mgbelekeke, like the chief and the people that the chiefs represented belong to Onitsha. This Court stated that as the action in the case was constituted, the plaintiffs were suing for themselves and as representing the Obi and people of onitsha, excluding the Mgbelekeke family. This shows that a section of a community can rightly be extricated from its kith and kin for the purpose of a suit. It follows, in my opinion that the order made by the learned trial Judge enjoining the 4th to the 10th defendants to defend the action on their behalf was not made in breach of any rule of procedure. His action cannot therefore be an exception to the principle that a point of law not raised in the courts below cannot be argued in this Court.

I will accordingly discountenance the appellants’ ground of appeal in this respect. On the second leg of the appeal, Mr. Lardner argued that the evidence adduced at the hearing of the action was at variance with the plaintiffs’ pleadings and writ of summons and by reason of that their claim for special damages was not established. He therefore submitted that the Federal Court of Appeal was in error in coming to the conclusion that the case against the 4th to the 10th defendants was proved.

Learned counsel for the respondents replied that since the 4th to the 10th defendants rested their case at the trial on the evidence called by the plaintiffs and that the evidence was neither challenged nor contradicted the Federal Court of Appeal was right in holding that the plaintiffs’ case was proved.

The plaintiffs’ claim, as per paragraph 17 of their statement of claim, is as follows:”The Plaintiffs’ claim against the defendants jointly and severally the said sum of ‘5,000 (Five Thousand Pounds) being special and general damages suffered by the plaintiffs as a result of the wrongful and/or unlawful acts committed by the defendants in that the defendants in or about 19th August, 1969 without the plaintiffs’ consent first sought and obtained wrongfully broke into and entered the plaintiffs’ town hall seized and carried away therefrom and converted to their own use furniture goods and/or chattels of the plaintiffs therein and set fire to and/or destroyed the plaintiffs’ said town hall lying and situated at Bethany Ehoa village Enhwe in Isoko Division within the jurisdiction of this Honourable Court, the particulars or damages being as appearing and/or set out hereunder: “and paragraph 12 thereof avers:”

During the pendency of the above-mentioned suits, and in furtherance of their wanton destruction of property as a means of stultifying plaintiffs in their desire to break away from the church at Owodokpokpo, the defendants, with the knowledge and support of the people of Owodokpokpo village aforesaid, on or about 19th August, 1967 without the plaintiffs’ consent first sought and obtained wrongfully broke into the entered the plaintiffs’ town hall at Bethany Ehao village; seized and carried away there from and/or converted to their own use furniture goods, or chattels, joint property of plaintiffs therein and set fire to and/or destroyed the plaintiffs’ said town hall” .

At the hearing of the case only the 2nd and 3rd plaintiffs testified. The evidence-in-chief given by the 2nd plaintiff reads in part as follows:”The following were among the Owodokpokpo people who came to attack us in Bethany-Ehao on 19-8-67. The persons I have mentioned are in court. (At this stage witness is asked to identify them he points at the 4th, 5th, 6th, 8th, 9th, and 10th defendants).

The defendants came to our church and completely destroyed it. The defendants also destroyed the town hall we jointly built. We have brought them to court because of the town hall they destroyed.” His testimony given under cross-examination by counsel for the 4th to the 10th defendants reads: “We had long built our town hall before we were asked to pay church dues in Owodokpokpo. Our town hall and church were destroyed by Owodokpokpo people (including defendants). For twenty years we were worshipping in Owodokpokpo, my people were not paying church dues. The receipts for the things (were) burnt down when the building was set on fire.

I am not telling lies to the court. All the things enumerated as having been destroyed by the defendants were in fact inside the town hall and were destroyed by defendants and their people. The evidence of the 3rd plaintiff as relevant reads:”There was some disagreement between my people and the defendants when I was living at Bethany-Ehao. Payment of church dues to defendants was one of the causes of disagreement. The burning of our village Bethany- Ehao by the defendants was another cause for the disagreement.

We have sued the defendants because they destroyed our town hall and the properties which were inside it.” (Emphasis mine). The particulars of special damages though not quoted here, were given in paragraph 17 of the statement of claim under two heads, namely “cost of construction” and “Contents of Town Hall”; and the total amounts under the two heads gave rise to the sum of 5,000 (N10,000) claimed.

It is to be pointed out that the appellants’ complaint relates in the main to the contents of the town hall. The finding of the Federal Court of Appeal in that respect is as follows:”It is clear from the evidence given that the plaintiffs’ case was that the Defendants destroyed the articles in their town hall. Such a case does not to our mind sound in detinue. So the question of demand and refusal will not arise before a cause of action would accrue to the plaintiffs. We are of the view that the contents of the town hall destroyed as a result of the town hall being set on fire are items of special damages for which the plaintiffs can claim.”

This head of damage is quite distinct from the claim made in respect of articles said to be seized and carried away by the defendants. In respect of the latter articles, the demand or refusal might be necessary before the Plaintiffs’ cause of action would accrue. But as we have just said, the evidence for the plaintiffs showed that the articles about which the 2nd and 3rd plaintiffs gave evidence were inside the town hall and were destroyed by the defendants as a result of the town hall being set on fire.

We are therefore satisfied that the plaintiffs have also made out their case against the Defendants in respect of the articles in the town hall which on the evidence adduced by the plaintiffs the 4th to the 10th defendants destroyed. … The evidence given for the plaintiffs on the issue of damages stands unimpeached as to its credibility. Again the defendants did not lead any contrary evidence on the point. … So we are satisfied having regard to the evidence given by the 2nd P. W. and 3rd P. W. (sic) that the plaintiffs have produced the available evidence on this case in proof of their claim for special damages. So from the evidence we award the plaintiffs special damages assessed at “N5,266.68. We also award the plaintiffs of general damages (sic) assessed at N250.00” (Emphasis mine).

From the foregoing there can be no doubt that the evidence given by the 2nd and 3rd plaintiffs established that when the town hall was set ablaze its contents were burnt as well. Granted that not all the items specified in paragraph 17 of the statement of claim under the heading “contents of town hall” were proved to have been destroyed by the fire. But it is obvious from the pleadings and the evidence in support that the plaintiffs claimed special damages in respect of the town hall and its contents.

Only 3 out of the 24 items alleged to have been in the town hall were in fact proved, and the finding of the Federal Court of Appeal specifically referred to those 3 items only. These were cupboards, Alladin Lamps and photographs. I am therefore of the opinion that there is no substance in this ground of appeal. In the result, the appeal fails and I will accordingly dismiss it with costs in favour of the respondents as proposed by my learned brother Sowemimo, J.S.C.G. S. SOWEMIMO, J.S.C.: I agree with the judgment of my brother, Uwais, J.S.C., a preview of which I had the privilege of reading. It is necessary, perhaps, to observe that this appeal presents at first sight some form of difficulty.

The respondents sued the appellants individually, although they are members of the same community for whom the learned trial judge had given leave to be sued in a representative capacity excluding the individual appellant. In circumstances in which allegations of assault, damage to properties, individual acts, against individual parties are made, it is difficult and sometimes unsustainable to sue a whole community for the acts of the individuals.In other cases, it must be accepted as settled principle that where it is disclosed to a trial judge that some individuals are not in a position to represent a community, for very good reasons the trial judge will not make such order of representation.

After all, justice must be dispensed with some certainties and justification. No person should be made responsible for something he had no knowledge about and that is why it is a discretionary act for any trial judge to make an order of representation. In my view, the argument sought to be put before us is absolutely unacceptable on the consideration of the peculiar facts in this appeal.

It is for these reasons as well as that stated by my learned brother, Uwais J.S. C. that I agree that the appeal must be dismissed and is hereby dismissed. I award N300 costs in favour of the respondents against the appellants severally and jointly.

SC.10/1981