Okwara Eke Kalu & Ors V. Rev. John I Joma (Pastor-in-charge Of Ututu Church Of Scotland Mission, Ututu) & Ors (1944)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for an Account—Rules 6 and 7 of Order XIII Protectorate Court Rules 1934 considered—Observations re final and Interlocutory Orders.
Held : An Order that an ” Account be taken ” is interlocutory.
The facts are fully set out in the judgment. A. Alakija for Appellants.
E. A. Akerele for Respondents.
The following joint judgment was delivered :-
The Plaintiffs by their Writ of Summons as amended claimed in the High Court :—
1, That an account he taken of all monies received annually since 1927, by the defendants on behalf of the Ututu Church of Scotland Mission, litutu, Aro District.
2. Payment of the amount found due to the said Ututu Church on the taking of such account.
There were no pleadings, but the very first plea of Defendants-Appellants’ Counsel to the claim was ” We dispute the Plaintiffs’ right to sue.” The contention was not ‘upheld by. the learned trial Judge in the Court below. The same contention is put forward in ground 6 of the grounds of appeal, and it is on this ground only that we have found it necessary to hear the parties. –
The Rules of the High Court provide how such a claim may be brought. The material rules are Rules 6 and 7 of Order XIII which are in the following terms :—
- Where a person has jointly with other persons a ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit.”
- Where more persons than one have the same interest in one suit, one or more of such persons may be authorised to sue or to defend in such suit, for the benefit of or on behalf of all parties so interested.”
The Plaintiffs have not disclosed to the Court or to the Defendants either in their Writ of Summons, in their evidence, or in any other way a single name of a member on whose behalf the Plaintiffs sue. It is clear therefore that the Plaintffs are not proceeding under Rule 6. To bring their action within that Rule the other persons with whom the Plaintiffs claim to have a joint ground for instituting the suit must be made parties to the suit either by themselves or by their definitely and properly authorised agents or attorneys.
Only one of the Plaintiffs gave evidence and he did not depose to being authorised by anyone to bring this action. Only two other witnesses were called by the Plaintiffs, neither of whom deposed that he had ever authorised the bringing of this action on his behalf. On the other hand Counsel for the Plaintiffs stated that nine elders (viz. Defendants Nos. 2-10) had refused to join the Plaintiffs.
It is clear therefore that when the Plaintiffs’ right to sue was challenged they failed to show any authorizatinn to sue given either by the Court or by anybody else, so as to bring them within the scope of Rule 7 above quoted.
We hold therefore that this action brought in a representative capacity was misconceived in that the Defendants-Appellants’ contention that the Plaintiffs could not sue in a representative capacity must be upheld more especially as the three Plaintiffs are not claiming the same interests as the other members whom they profess to represent. They are claiming that they—the three Plaintiffs—are entitled to receive the payment and therefore the control of all the Church moneys while the interest they claim for the other members is quite different and practically much less. The three Plaintiffs seek to get the money into their hands and each of the other members whom they profess to represent is to get, if the Plaintiffs succeed, only a somewhat vague and elusory right as some sort of a beneficiary with very undefined rights and powers as such.
There is one other aspect of the case which should be mentioned, namely, the extraordinary position arising from the curious procedure adopted by the Court below as regards the last nine Defendants. Before the trial of the suit began the Court below struck out these nine Defendants, awarding each of them costs, ” as the claim disclosed no cause of action against them.” Then, after the conclusion of the trial, the Court, by order apparently ex proprio mote, rejoined these nine Defendints and in the same order the Court straightaway found that the Plaintiffs were, entitled to an account from the ten Defendants.
We may add, having regard to the learned Judge’s ruling on the application for leave to appeal, that in our view the Defendants-Appellants were right to treat the Judge’s Order as an interlocutory one and to appeal against it as such. The order did not at all deal with the claim in the writ for payment so for that reason it was not a final judgment in the suit. Moreover the claim as regards the account was not that the Defendants ” do file an account ” but that ” an account be taken,” so that the order to ” file an account ” was not ” final ” even on that part of the claim. Final judgment on a claim that an account be taken can be given only where the account has been filed and either agreed by the parties or settled by the Court if parties disagree.
The appeal is allowed, the judgment or Order appealed from set aside and in lieu thereof it is directed that a judgment of non-suit be substituted;
The Appellants are awarded costs in this Court assessed at 40 guineas and in the Court below to be taxed.
