Raphael Ejezie & Anor V Christopher Anuwu & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C

This is an interlocutory appeal arising out of a suit which was commenced 32 years ago on 14-4-76. Remarkably, when on 17-4-96, the trial court gave the ruling which is the foundation of this appeal, the trial of the suit to conclusion had been aborted a few times. The plaintiffs, who brought the suit had been locked in a bitter dispute as to who of them should pursue the suit as representatives of their Umudike Family.

At the commencement of the suit, six persons initiated the suit as plaintiffs for and on behalf of Umudike family of Uzoakwa Ihiala against 13 persons who were sued as the representatives of Umumeri family of lhiala. The plaintiffs claimed the ownership of a parcel of land known as “Okpuno Dike Ezeala: They claimed for declaration of title, N5,000.00 damages for trespass and injunction restraining the defendants from committing further acts of trespass on the land.

The defendants denied that the plaintiffs were the owners of the land. They claimed to be the owners of the land.

Problem arose on 6/2/96 when four persons claiming to be members of the plaintiffs’ family brought an application praying to be admitted into the proceedings as representatives of the Umudike Family in substitution for the original 1st, 2nd, 3rd and 6th plaintiffs who were said to have expressed an intention not to participate further in the proceedings as the representatives of the Plaintiffs’ Umudike Family.

Paragraphs 2 to 4 of the affidavit sworn to by one of the applicants are eye-opening and read thus:

“2. That I am one of the persons represented in the above suit by the named plaintiffs – respondents.

3. That Christopher Anuwu, Dennis Ohanehi, Joseph Okeyika and James Anozie, the 1st, 2nd, 3rd, and 6th plaintiffs-respondents have now expressed their intention not to participate further in the prosecution of this suit.
4. that I and the other applicants and the other members of Umudike Family of Uzoakwa, Ihiala including the 4th and 5th plaintiffs-respondents are determined to prosecute the above suit to its just determination.
5. That exhibited hereto and marked Exhibit’ A’ is a certified true copy of the resolution of members of Umudike Family of Uzoakwa to pursue and prosecute the above suit to its final and just determination.
6. That I and the other applicants were selected by members of Umudike Family of Uzoakwa to make this application to enable us join the 4th and 5th plaintiffs\respondents in prosecuting the above suit.”

The three other applicants swore to affidavits similar to the above. It is apparent that the applicants applying to be admitted as plaintiffs wished to join the original 4th and 5th plaintiffs in order to prosecute the suit. The four plaintiffs sought to be replaced by the applicants resisted the attempt to remove them. Each of them deposed to an affidavit. Paragraphs 10 to 13 of the affidavit of Christopher Anuwu which would appear to represent the views of the other three plaintiffs read:

“10. That the Honourable Court take judicial notice of the ‘Resolutions of Umudike family meeting at a General Assembly on September 10, 1994 already before this Court.

(a) Chief Christopher Anuwu

(b) Chief Joseph Okeyika

(c) Chief James Anozie Mbonu

(d) Mr. Dennis Ohanehi

to continue to represent us in this Suit No. HN/12176.

11. That by the above Resolution, the mandate given to Chief Godfrey Nsofor and Raphael Ejezie to continue to be part of the representatives of Umudike Village was WITHDRAWN. They, therefore, have no right to continue to purport to represent the Umudike family, let alone asking others to join them.
12. That this court takes further judicial notice of our letter of November 13, 1995, hereby marked exhibit ‘C’, applying to withdraw this case. It was signed by the four (4) Plaintiffs and the Chairman and Secretary respectively of Umudike Family Meeting.
13. That this Court also take judicial notice that by our letter of January 23, 1995, we have replaced Barrister G.R.I Egeonu, SAN, as our attorney on this case and put in his place Barrister

N. N. Annah, SAN. The continued presence of Mr. Egeonu on this case, is therefore, illegal and must not be tolerated further.”

This was the background to the dispute which led to the present appeal. The applicants had tried by their application to replace four of the original six plaintiffs. They wished to come into suit in their stead. They however sought to retain in the suit the original 4th and 5th plaintiffs. Four of the original six plaintiffs resisted the attempt to have them substituted. Against this background, counsel addressed the trial court. After hearing arguments from counsel, the trial court on 17-4-96 in its ruling on the application concluded thus:

“In the midst of this confusion, what is the court expected to do Is it to grant an application filed to remove some of the Plaintiffs who were even served with the application; and an application filed by counsel whose brief the said Plaintiffs allege they had terminated earlier. I must say that I find myself unable to grant such an application. There are also so many irreconcilable conflicts in the affidavits that I do not think that even oral evidence will cure the dilemma of the Plaintiffs. The truth of the matter is that the Plaintiffs in this suit are in disarray and it is impossible to move forward or even stand still in this case. In the light of the foregoing, I make the following orders: (a) This motion for substitution dated 5/2/96 and filed on 6/2/76 is hereby refused.

(b) This suit No. HN/ 12/76 is hereby struck out. If the Plaintiffs eventually reconcile, they can apply to relist this suit.

(c) I make no order as to costs.”

The tenor of the passage of the trial court’s ruling reproduced above reveals the exasperation of the trial court with a problem unnecessarily created by the plaintiffs. The 4th and 5th of the plaintiffs brought an appeal against the ruling of the trial court. They were identified in the Notice of appeal as Plaintiffs/Appellants. Their erstwhile co-plaintiffs were identified as plaintiffs/respondents whilst the defendants were the defendants /respondents. The Court of Appeal, Enugu (hereinafter referred to as the court below) heard the appeal. On 14-1-2002, the court below in its judgment dismissed the appeal. The lead judgment of the court below per Olagunju J.C.A. concluded thus:

“On the two major issues raised in the appeal I wish to recapitulate that, firstly, the rejection of the application for substitution was due to the fact that it was ill-conceived and lacked the basic requirement for sustenance, namely, evidence. Secondly, striking out the case summarily is an ineluctable corollary of an irredeemable stalemate between the representatives of the plaintiffs who forced the proceedings to a halt. In the static state to which the proceedings were steered by the plaintiffs’ agents who were reveling in the deadlock the learned trial judge found himself helmed to a corner from where he could not ‘move forward or stand still’. As the appellants and the plaintiffs/respondents have by their conduct proclaimed the nunc dimittis of the proceedings the advancement of which had been put on hold by the appellants and plaintiffs/respondents the dispersal of the antagonists became inevitable for the common good. A judge finding himself in a situation where the control of the proceedings was taken out of his hands by the cantankerous elements masking as representatives of the plaintiffs the honourable recourse that is compatible with his office is to get at the root of their ostensible reason for herding together. Against that factual backdrop the learned trial judge had a duty to preserve the honour of his office even if in doing so he had to strike out the case as the only way of abating what was becoming a nuisance within the precints of the law court.

For the various reasons hereinbefore canvassed the appeal fails and it is dismissed. In effect, the decision of the learned trial judge, Ononiba, J., delivered on 3/6/98 is affirmed. I award N5,000.00 costs against the appellants.

Appeal dismissed.

The plaintiffs/appellants before the court below, who were the 4th and 5th plaintiffs before the trial court were dissatisfied with the judgment of the court below. They have brought this final appeal before this Court. In their appellants’ brief, the issues for determination in the appeal were identified as the following:

“1. Whether the lower court was right in dismissing the plaintiffs-appellants’ appeal and in affirming the Order of the trial court striking out Suit No. HN/12176.

2. Whether the lower court was right in holding that the trial court was justified in refusing the application for substitution and that the only course open to it thereafter was striking out the suit. 3. Whether the lower court was right in holding that the trial court was justified in failing to determine the application for substitution on the merits.
3. Whether the lower court was right in holding that the plaintiffs- appellants unilaterally changed the capacity in which the plaintiffs- respondents were ‘operating’ and was the lower court not precluded by its previous decision in CA\JE\i116m\196 from entertaining the plaintiffs-respondents’ purported ‘preliminary objection.”

The plaintiffs-respondents’ who were to be substituted by the applicants before the trial court have filed a respondents’ brief wherein they identified the issues for determination in the appeal as these:

“1. Was the court below namely the Court of Appeal right in conforming the refusal of the High Court to substitute plaintiffs/respondents namely the other set of four plaintiffs on record representing Umudike family of Ihiala to just like (sic) the appellants.

2. ……Whether the court below was right in confirming the striking out of the plaintiffs’ suit by the High Court in the midst of separate representation by two counsel on two inconsistent objectives and of course the case or suit not being in a fit and proper condition to go to trial.”

It seems to me that the simple issue for determination in this appeal is the propriety of the order made by the trial court which was affirmed by the court below striking out the suit because of the dispute within the plaintiffs Umudike family as to who should pursue the suit as the representatives of the family.

I observed earlier that this was a land dispute between two families each claiming ownership of the land in dispute. The representatives of the plaintiffs and the defendants were members of the Umudike and Umummeri families respectively. The parties, at the time the application for substitution was brought had filed their respective pleadings. The plaintiffs in paragraphs 13 to 16 of their Amended Statement of Claim had pleaded thus:

“13.The portion of land verged black within the area verged pink on the Plan No. P.O.\E90\78 is known as “Akaba Uke Ezeala Dike” or “Okpuno Dike Ezeala” The plaintiffs granted farming tenancies of portions of the area verged black on the Plan No. P.O.IE 90/78 to the defendants and to some other people. In 1977, the defendants refused to pay to the plaintiffs then annual tributes for farming on “Okpuno Dike Ezeala” without reference to the plaintiffs.

14. In March, 1976, the defendants started to clear ‘Okpuno Dike Ezeala’ land preparatory to farming thereon without reference to the plaintiffs and when the plaintiffs warned them against their acts of trespass on the said land the defendants started to claim Okpuno Dike Ezeala’s land as their own.
15. At the trial of this suit the plaintiffs will rely on the proceedings and the Order in the Onitsha High Court Suit No. 0/140/66, the judgment in the Nnewi High Court Suit No. HN/14/76 and on the Report of the Inquiry into the Ihiala Chieftaincy dispute – Official Document No. 18 of1963.
16. Despite repeated warning by the plaintiffs, the defendants intend, unless restrained by an Order of the Court, to continue with their acts of trespass on the plaintiffs’ ‘Okpuno Dike Ezeala’ land.”

The defendants in paragraphs 24 to 26 of their Amended Statement of defence pleaded:

“24. The Defendants deny paragraph 13 of the amended statement of claim and the averments therein and state that the land therein mentioned is known as Akabo Uke and not Akabo Uke Ezeala Dike or Okpuno Dike Ezeala. That the said land is the bonafide property of Umummeri, members of Umummeri have been farming in Akabo Uke as original owners of the land and have crops therein.the area with anybody or paid any tribute or tax to anyone for the use of the said land and need not make any reference whatsoever to the Plaintiffs over the said land.

25. Paragraph 14 of the amended statement of claim is false. In answer thereto the Defendants repeat paragraph 24 above and further add that the Plaintiffs – people of Umudike have never farmed on Akabo Uke land to date. Defendants of Umummeri have always farmed on Akabo Uke land from time immemorial without any permission, let or hindrance from Plaintiffs or any quarter in Ihiala.
26. In answer to paragraph 15 of the amended statement of claim which is denied, the Defendants herein further state that:

(a) they were not parties to suit No. 0/140/66.

(b) Suit No. 0/140/66 was struck out and no judgment was entered in favour of the Plaintiffs against the Defendants herein.

(c) Reliance would be placed at the hearing on the claim in suit No. 0/140/66 as well as proceedings of 7th November, 1966 in the said suit.”

A close comparison of the above extracts of the partie’s pleadings before the trial court reveals that the parties had drawn a battle line between themselves as to the ownership of the land in dispute. In other words, issues had been joined as to the said ownership. It is against this background that the application to substitute four of the representatives of Umudike family as plaintiffs ought to be considered.

The standpoint of the four plaintiffs/respondents who were to have been substituted under the application before the court was that their Umudike family wanted to withdraw the suit in court against the defendants/respondents. In manifestation of their intention they filed a letter marked exhibit ‘C’ before the trial court which said letter was signed by the Chairman and Secretary respectively of Umudike family.

The plaintiffs/appellants however resisted the attempt to withdraw the suit. This informed the emergence of the application to substitute the plaintiffs/respondents with the applicants before the trial court. The trial court was obviously dissatisfied with the situation in the case arising from the plaintiffs’ failure to speak with one voice on behalf of their Umudike family. This informed its decision to strike out the case. But I think, with respect, that the trial court was wrong. It did not sufficiently bear in mind that the suit was capable of being prosecuted to conclusion by the two plaintiffs/appellants as the representatives of Umudike family. It ought to have been borne in mind that on the extant pleadings of parties, there was a clear dispute made out as between the parties. As the pleadings remained unamended there was a dispute to be tried. Under Order IV rule 3 of the applicable High Court Rules, there is power vested in the trial court to resolve disputes of this nature as to who should pursue a suit as representatives of a family or group of persons. Rules 1 and 3 of Order IV of the High Court Rules of Eastern Nigeria, 1963 provide:

“I. If the plaintiff sues, or any defendant counterclaims in any representative capacity, it shall be expressed on the writ. The Court may order any of the persons represented to be made parties either in lieu of, or in addition to, the previously existing parties.

3. Where more persons than one have the same may, with the approval of the court, be authorized by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all

parties so interested.”

(italics mine)

I observed earlier that all the plaintiffs had originally brought the suit as the representatives of Umudike family. They did not, acting together, file a Statement of claim or process making a concession that the land in dispute did not belong to the family. It is settled law that in a representative action, persons who are to be represented and the person or persons representing them should have the same interest in the cause or matter: See S. Orogbade v. S.J.M. Onitiju [1962] All N.L. R. 32. Further, the Rule permitting representative action is a rule of convenience and as such ought not to be treated with any rigidity but as a flexible tool of convenience in the administration of justice. – See s.Analagu and Ors. v. The Attorney-General a/the East Central State & Ors [1976} 11 SC 109. An extension of this principle is that all persons who join as plaintiffs in the same suit cannot set up conflicting claims between themselves. In other words plaintiffs must act together. See Re: Mathews [1905} 2 Ch. 460 and Re Wright [1895} 2 Ch. 744. It is also the law that no person can in the same suit be both plaintiff and the defendant even in different capacities: See Ellis v. Kerr (1910) 1 Ch. 537.

Now, in view of the fact that the extant amended Statement of claim filed on all the plaintiffs’ behalf made a claim to the ownership of the land in dispute, it could not be allowed for the plaintiffs/respondents to pursue a line of action which gives the lie to the amended statement of claim before the court or which shows the plaintiffs as not acting together. As it was, the contention of the plaintiffs/respondents would amount to a support for the defendants/respondents case whilst that of the plaintiffs/appellants was in pursuit of the plaintiffs’ original claim. I do not of course rule out a possibility that the plaintiffs may, acting together compromise their suit and reach a settlement with the defendants but they could not split themselves into two groups in order to blow hot and cold.

Where the authority of persons who have brought an action in a representative capacity is challenged, the onus is on the person who has brought the action to satisfy the court that they have been duly authorized. See Duke & Ors. v. Henshaw [1940] 6 WA.CA. 241. In this case, no one had challenged the authority of the Plaintiffs/appellants to pursue the suit as representatives of the Umudike family. The plaintiffs/respondents on the other hand indicated that they as the representatives of the same family wanted the suit which they joined in bringing to be withdrawn. It seems to me that whilst there remained in the suit the representatives of the Umudike family who were ready and willing to prosecute the suit as originally conceived to conclusion, the suit ought not to have been struck out.

It seems to me on the facts of this case that the insistence of the plaintiffs/respondents in this case not to pursue the suit against the defendants/respondents would appeal to portray them as having an identical interest with the defendants in the suit. The proper order to make in my view is to join them to the suit as the 2nd set of defendants whilst the original defendants remain the 1st set of defendants.

The four members of the Umudike family who brought the application to be substituted for the plaintiffs/respondents have not filed an appeal against the order of the trial court striking out the suit and thus refusing their application. Indeed, their application was not even considered on its merit. Instead the trial court, believing that the plaintiffs were needlessly delaying the hearing of the suit, struck out the suit.

But this case has been so long in court that I ought to consider and grant the said application in order to safe time. Accordingly, the applicants Geoffrey Ifebuzor, Chief James Ohakaba, Chief Hyacinth Christopher Nwachukwu NZeribe and Nze Godwin Anyamele all of the Umudike family are substituted for the plaintiffs/respondents in the case.

In the final conclusion, I make an order striking out the names of the original 1st, 2nd, 3rd and 6th plaintiffs as plaintiffs in this suit. It is ordered that the said 1st, 2nd, 3rd, and 6th plaintiffs be classified as 2nd set of defendants. The plaintiffs/appellants are to continue as plaintiffs to enable them prosecute the suit to conclusion. The appeal accordingly succeeds.

This being an intra-family dispute, I make no order as to costs.

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SC.340/2002