3PLR – BULAI V CHIEF OMOYAJOWO
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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BULAI
V
CHIEF OMOYAJOWO
HIGH COURT (WEST).
SUIT NO. S.C. 667/65.
3PLR/1968/32 (HC)
BEFORE
BETWEEN
- ABUDU BULAI
- JAMES AYENO For themselves and on behalf of Igbimo people
AND
CHIEF OMOYAJOWO For himself and as representing the people of Ikoyi Ikole-Ekiti
REPRESENTATION
Ayoola & Co. – for the Appellants
Ajibade & Co. – for the respondent
MAIN ISSUES
Practice and Procedure-Action-Defendant sued as representing community in claim for land-No representation order-No motion by Defendant to amend title of writ-Whether community bound by judgment-High Court (Civil Procedure) Rules W.N. Order rule 9; Order 2, rule 2.
MAIN JUDGEMENT
COKER, J.S.C. (delivering the judgement of the Court):-
This ruling is concerned only with one of the points being canvassed on this appeal and as a decision on the point is fundamental to the eventual result of the appeal, we decided to hear argument and decide on that point in limine. The point is whether in the circumstances of this case, where no formal order was obtained for the defendants to defend the action in a representative capacity, the judge was entitled, as he did, to give judgement against the defendants in that capacity thereby binding all the members of their class. In the action the original plaintiff, Olanrewaju Onikoyi of Ikoyi, had sued the defendants. Abudu Bulai and James Ayeno on behalf of Igbimo people. There were originally three defendants to the action, the third obviously sued as representing the Ijoka people. At a stage of the proceedings, how-ever, the action was withdrawn, and struck out, as against that defendant. The original plaintiff died in the course of the proceedings and the present respondent was substituted as plaintiff. The claim is for a declaration of title to land at Ikole in Ekiti Division, damages for trespass and injunction. The court gave judgement for the plaintiff on all three heads of the claim. Neither of the parties throughout the trial sought or obtained a representation order although it is expressed on the writ that the plaintiff had sued and the defendants had been sued in representative capacities.
On appeal before us, the contention of learned counsel for the defendants (now the appellants) is that although the plaintiff is entitled to sue the defendants in a representative capacity by referring to them as such in his writ, yet he is not entitled to judgement against all the members of the class of persons they were supposed to represent without first obtaining an order for the defendants named on the writ to defend the action on behalf of the other members of their class. The relevant rule is order 7, rule 9 of the High Court (Civil Procedure) Rules (Western Nigeria) and it provides as follows
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 judge to defend in such cause or matter on behalf or for the benefit of all persons so interested”.
lows:-”Where
Learned counsel for the defendants pointed out that the rule is identical in wording with the former English Rules of Supreme Court, order 16, rule 9 and referred us to a number of English decisions on that rule. Manifestly, most of the English decisions concern unincorporated associations like trade unions (see Hardie & Lane Ltd. v. Chiltern and ors. (1928) 1 K.B. 663 and Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1914] 2 K.B. 930; Barker v. Allanson [1937] 1 All E.R. 75 and London Association for Protection of Trade and anor, v. Greenlands Ltd. (1916) 2 A.C. 15) or a particular class of beneficiaries (see May v. Newton (1887) 34 Ch. D. 347) and the like and it is fair to point out that community of interests as in a family holding under Native Customary Law was never envisaged by the rule. In Taff Vale Railway Co. v. Amalgamated Society of Railway Servants, supra, to which counsel for the defendants has referred us, the defendant, a registered trade union, had been sued in its registered name and the question of obtaining a representation order did not therefore arise in that case. It is significant that in the course of his judgement Lord Lindley (at p.. 443 of the Report) observed that even if the trade union could not have been sued in its registered name “some of its members (namely its executive committee) could be sued on behalf of themselves and the other members of the society and an injunction and judgement for damages could be obtained in a proper case in an action so framed”. In Duke of Bedford v. Ellis (1901) A.C. 1., the House of Lords held that it was proper for a number of persons who claimed to have a common interest in the vindication of alleged rights of a class to sue as plaintiffs for themselves and other persons claiming similar rights. These cases really turned not just on the failure to obtain a formal representation order or the necessity to obtain one but on the substantial point as to whether there was or there was not a sufficient community of interest to warrant the representatives bind-ing the class, or in the case of a party sued, that party being compelled to defend the action on behalf of himself and others. Furthermore, the decisions leave unanswered the question whether or not a representation order is necessary in all cases under the rule before defendants can be compelled to defend an action in a representative capacity. The English decisions therefore throw very little light on the matter which is really in issue in the present appeal and indeed in Walker v. Sur. and ors. supra, all the three members of the Court of Appeal admitted their inability to say with certainty what the rule precisely meant.
On the bare wording of order 7, rule 9, High Court (Civil Procedure) Rules there is, as counsel for the plaintiff contended before us, no stipulation as to obtaining a formal order of representation before suing the defendants; but if the several phrases of the rule were read disjunctively, as the text clearly implies, it is difficult to resist the submission that the rule envisages as well cases in which a formal representation order might be sought or obtained. In cases where such an order would have been refused if it had been asked for it is not permissible to sue the defendants in a representative capacity without such an order. (See per Sargant L.J. in Hardie Lane Ltd. v. Chiltern and ors. (1928) 1 K.B. 663 at p. 699 et seqq.). On the other hand it seems that under the English rule where leave to sue persons in a representative capacity would have been granted if sought, the failure to obtain a formal representation order for the defendants to defend in that capacity will not vitiate the action. (See Temperton v. Russell and ors. (1893) 1 Q.B. 715). in Wood v. McCarthy and Anor. (1893) 1Q.B. 775 an order was made against the will of the defendants authorising them to defend the action on behalf of a Labour Protection League of which they were executives, the plaintiff having established that the named defendants had a common interest with the others of the league.
Now order 2, rule 2 of the High Court (Civil Procedure) Rules (Western Nigeria) provides as follows:
“If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity the endorsement shall show in what capacity the plaintiff or the defendant sues or is sued”.
Hence, where a defendant protests in the proper manner that he is not competent to represent the class which it is sought to make him represent or that for other reasons he is not the proper person to be named as a defendant to the particular action (see Walker v. Sur and ors., supra, Barker v. Allanson, supra, and Hardie & Lane Ltd., v. Chiltern supra) he will be at liberty to apply for the title of the writ to be amended in his favour accordingly unless a representation order were asked for and obtained against his will. These considerations lead to the conclusion that in the application of the rule a great deal depends on the attitude of the named defendant and this is the more so in a case of family property under Yoruba customary law. Under that type of land-holding no individual member of the family has, in the family property, any right which can be attached in execution or which he can alienate and the limited interests of individual members are not necessarily identical in content and quality. Yet such an individual member can properly represent the entire family and defend the rights of the entire family in their properties. Where this has been the case and the action had been litigated throughout on that basis, it is inconceivable that an Appeal Court, before which the propriety of the defendant defending on behalf of the family without a formal representation order was being raised for the first time, would accede to such a contention. That was the view expressed by this court in Ndokubo Quaker Dokubo, etc v. Chief Davies, Bob Manuel, etc., SC. 437/65 of the 13th April, 1967. In this connection the observations of this court in Ozomagbo Ubagu and ors. v. Chief Ozonechi Okachi and ors.,F.S.C. 484/63 of the 20th February, 1964, on this point are also relevant. In Habib Disu and ors. v. Daniel Kalio, F.S.C. 216/62 of the 7th March, 1964, this court, dealing with the stricter rule of the Lagos High Court prescribing a formal representation order based on the authority of those to be represented, nevertheless concluded that where defendants sued as representing the family and had fought the case throughout on that footing, the failure to obtain a formal representation order would not vitiate the judgement against the entire family. The cases of Fraser v. Cooper, Hall & Co. (1882) 21 Ch. D. 718 and Oragbaide v. Chief Onitiju (1962) 1 All N.L.R.32, cited to us by counsel for the defendants, do not carry the matter any further for in the first one the point that was in issue was the right of a person to be added as a defendant to represent a class of person holding a different view to the person sued as defendant, and in the latter case the dictum about a formal representation order was based on a concession by counsel.
In the present case the original defendants were sued as “representing Igbimo and Ijako peoples” and the writ was so endorsed. The plaintiffs statement of claim averred that the defendants are from Ijabo Quarters, Igbimo in Ado-Ekiti District and that the action was brought against the defendants as representing their peoples. The defendants’ statement of defence admitted that the defendants were from Ijabo Quarters in Igbimo but neither admitted nor denied the fact that they were sued for and on behalf of their peoples, although at the end of the statement of defence there is a general traverse of all facts not expressly admitted. Some paragraphs of their statement of defence are important and read as follows:-
“4. The defendants deny paragraph 6 of the plaintiff’s statement of claim and state that their ancestors had a grant of the land from an EW 1 of Ado a pristine predecessor of the present Ewi of Ado
- The defendants further state that since the grant to their ancestor from time immemorial the land has been in their family’s effective occupation and possession.
- On the strength of this advice first defendant’s father took a civil action in the Native Court of Ado District Ekiti in Suit No.64/36 and entitled Jinadu Lemomu of Igbimo v. Ekemode.
- The defendants state that the Ekemode who was sued in the action referred to in paragraph 15 above was the then Onikoyi of Ikoyi and a titular predecessor of the present plaintiff.
- The defendants deny paragraph 12 of the statement of claim and state that Ekiti Ekemode is in their (Ijabo people’s) land.
- The defendants deny paragraph 13 of the statement of claim and state that their ancestor have been cultivating on this land from time immemorial and the land has descended down the ages to them”.
There are in the record a number of affidavits which were sworn to by the first defendant and in which he described himself as of Igbimo and indeed in one affidavit he deposed inter alia as follows:-
“That I am the first defendant in the above matter and I swear to this affidavit for myself and on behalf of the people of Igbimo, via Ado-Ekiti”.
The pleadings directly put the title of the peoples of the defendants in issue and the oral evidence of the defendants and their witnesses unequivocally pitched the title of the defendants’ people against that of the plaintiff. In his final address to the court of trial the point was not then, as it is now being, raised by counsel for the defendants. At the very least the course which the proceedings took assumed not only that the defendants were properly sued as representing their peoples but also that the other members of their class are at one with them in the defence of their common title.
We think it is much too late now to re-open the issue by a subtle recourse to the intricate question of the actual meaning and application of order 7, rule 9. The judgement must encompass the persons and class that defended the action and whatever that judgement may be it ensures for or against the people of Igbimo as represented by the present appellants.
For themselves and on behalf of Igbimo people
For himself and as representing the people of Ikoyi Ikole-Ekiti
Practice and Procedure-Action-Defendant sued as representing community in claim for land-No representation order-No motion by Defendant to amend title of writ-Whether community bound by judge-ment-High Court (Civil Procedure) Rules W.N. Order rule 9; Order 2, rule 2.
Ayoola & Co. for the Appellants.
Ajibade & Co. for the respondent.
COKER, J.S.C. (delivering the judgement of the Court):- This ruling is concerned only with one of the points being canvassed on this appeal and as a decision on the point is fundamental to the eventual result of the appeal, we decided to hear argument and decide on that point in limine. The point is whether in the circumstances of this case, where no formal order was obtained for the defendants to defend the action in a representative capacity, the judge was entitled, as he did, to give judgement against the defendants in that capacity thereby binding all the members of their class. In the action the original plaintiff, Olanrewaju Onikoyi of Ikoyi, had sued the defendants. Abudu Bulai and James Ayeno on behalf of Igbimo people. There were originally three defendants to the action, the third obviously sued as representing the Ijoka people. At a stage of the proceedings, how-ever, the action was withdrawn, and struck out, as against that defendant. The original plaintiff died in the course of the proceedings and the present respondent was substituted as plaintiff. The claim is for a declaration of title to land at Ikole in Ekiti Division, damages for trespass and injunction. The court gave judgement for the plaintiff on all three heads of the claim. Neither of the parties throughout the trial sought or obtained a representation order although it is expressed on the writ that the plaintiff had sued and the defendants had been sued in representative capacities.
On appeal before us, the contention of learned counsel for the defendants (now the appellants) is that although the plaintiff is entitled to sue the defendants in a representative capacity by referring to them as such in his writ, yet he is not entitled to judgement against all the members of the class of persons they were supposed to represent without first obtaining an order for the defendants named on the writ to defend the action on behalf of the other members of their class. The relevant rule is order 7, rule 9 of the High Court (Civil Procedure) Rules (Western Nigeria) and it provides as follows
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 judge to defend in such cause or matter on behalf or for the benefit of all persons so interested”.
lows:-”Where
Learned counsel for the defendants pointed out that the rule is identical in wording with the former English Rules of Supreme Court, order 16, rule 9 and referred us to a number of English decisions on that rule. Manifestly, most of the English decisions concern unincorporated associations like trade unions (see Hardie & Lane Ltd. v. Chiltern and ors. (1928) 1 K.B. 663 and Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1914] 2 K.B. 930; Barker v. Allanson [1937] 1 All E.R. 75 and London Association for Protection of Trade and anor, v. Greenlands Ltd. (1916) 2 A.C. 15) or a particular class of beneficiaries (see May v. Newton (1887) 34 Ch. D. 347) and the like and it is fair to point out that community of interests as in a family holding under Native Customary Law was never envisaged by the rule. In Taff Vale Railway Co. v. Amalgamated Society of Railway Servants, supra, to which counsel for the defendants has referred us, the defendant, a registered trade union, had been sued in its registered name and the question of obtaining a representation order did not therefore arise in that case. It is significant that in the course of his judgement Lord Lindley (at p.. 443 of the Report) observed that even if the trade union could not have been sued in its registered name “some of its members (namely its executive committee) could be sued on behalf of themselves and the other members of the society and an injunction and judgement for damages could be obtained in a proper case in an action so framed”. In Duke of Bedford v. Ellis (1901) A.C. 1., the House of Lords held that it was proper for a number of persons who claimed to have a common interest in the vindication of alleged rights of a class to sue as plaintiffs for themselves and other persons claiming similar rights. These cases really turned not just on the failure to obtain a formal representation order or the necessity to obtain one but on the substantial point as to whether there was or there was not a sufficient community of interest to warrant the representatives bind-ing the class, or in the case of a party sued, that party being compelled to defend the action on behalf of himself and others. Furthermore, the decisions leave unanswered the question whether or not a representation order is necessary in all cases under the rule before defendants can be compelled to defend an action in a representative capacity. The English decisions therefore throw very little light on the matter which is really in issue in the present appeal and indeed in Walker v. Sur. and ors. supra, all the three members of the Court of Appeal admitted their inability to say with certainty what the rule precisely meant.
On the bare wording of order 7, rule 9, High Court (Civil Procedure) Rules there is, as counsel for the plaintiff contended before us, no stipulation as to obtaining a formal order of representation before suing the defendants; but if the several phrases of the rule were read disjunctively, as the text clearly implies, it is difficult to resist the submission that the rule envisages as well cases in which a formal representation order might be sought or obtained. In cases where such an order would have been refused if it had been asked for it is not permissible to sue the defendants in a representative capacity without such an order. (See per Sargant L.J. in Hardie Lane Ltd. v. Chiltern and ors. (1928) 1 K.B. 663 at p. 699 et seqq.). On the other hand it seems that under the English rule where leave to sue persons in a representative capacity would have been granted if sought, the failure to obtain a formal representation order for the defendants to defend in that capacity will not vitiate the action. (See Temperton v. Russell and ors. (1893) 1 Q.B. 715). in Wood v. McCarthy and Anor. (1893) 1Q.B. 775 an order was made against the will of the defendants authorising them to defend the action on behalf of a Labour Protection League of which they were executives, the plaintiff having established that the named defendants had a common interest with the others of the league.
Now order 2, rule 2 of the High Court (Civil Procedure) Rules (Western Nigeria) provides as follows:
“If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity the endorsement shall show in what capacity the plaintiff or the defendant sues or is sued”.
Hence, where a defendant protests in the proper manner that he is not competent to represent the class which it is sought to make him represent or that for other reasons he is not the proper person to be named as a defendant to the particular action (see Walker v. Sur and ors., supra, Barker v. Allanson, supra, and Hardie & Lane Ltd., v. Chiltern supra) he will be at liberty to apply for the title of the writ to be amended in his favour accordingly unless a representation order were asked for and obtained against his will. These considerations lead to the conclusion that in the application of the rule a great deal depends on the attitude of the named defendant and this is the more so in a case of family property under Yoruba customary law. Under that type of land-holding no individual member of the family has, in the family property, any right which can be attached in execution or which he can alienate and the limited interests of individual members are not necessarily identical in content and quality. Yet such an individual member can properly represent the entire family and defend the rights of the entire family in their properties. Where this has been the case and the action had been litigated throughout on that basis, it is inconceivable that an Appeal Court, before which the propriety of the defendant defending on behalf of the family without a formal representation order was being raised for the first time, would accede to such a contention. That was the view expressed by this court in Ndokubo Quaker Dokubo, etc v. Chief Davies, Bob Manuel, etc., SC. 437/65 of the 13th April, 1967. In this connection the observations of this court in Ozomagbo Ubagu and ors. v. Chief Ozonechi Okachi and ors.,F.S.C. 484/63 of the 20th February, 1964, on this point are also relevant. In Habib Disu and ors. v. Daniel Kalio, F.S.C. 216/62 of the 7th March, 1964, this court, dealing with the stricter rule of the Lagos High Court prescribing a formal representation order based on the authority of those to be represented, nevertheless concluded that where defendants sued as representing the family and had fought the case throughout on that footing, the failure to obtain a formal representation order would not vitiate the judgement against the entire family. The cases of Fraser v. Cooper, Hall & Co. (1882) 21 Ch. D. 718 and Oragbaide v. Chief Onitiju (1962) 1 All N.L.R.32, cited to us by counsel for the defendants, do not carry the matter any further for in the first one the point that was in issue was the right of a person to be added as a defendant to represent a class of person holding a different view to the person sued as defendant, and in the latter case the dictum about a formal representation order was based on a concession by counsel.
In the present case the original defendants were sued as “representing Igbimo and Ijako peoples” and the writ was so endorsed. The plaintiffs statement of claim averred that the defendants are from Ijabo Quarters, Igbimo in Ado-Ekiti District and that the action was brought against the defendants as representing their peoples. The defendants’ statement of defence admitted that the defendants were from Ijabo Quarters in Igbimo but neither admitted nor denied the fact that they were sued for and on behalf of their peoples, although at the end of the statement of defence there is a general traverse of all facts not expressly admitted. Some paragraphs of their statement of defence are important and read as follows:-
“4. The defendants deny paragraph 6 of the plaintiff’s statement of claim and state that their ancestors had a grant of the land from an EW 1 of Ado a pristine predecessor of the present Ewi of Ado
- The defendants further state that since the grant to their ancestor from time immemorial the land has been in their family’s effective occupation and possession.
- On the strength of this advice first defendant’s father took a civil action in the Native Court of Ado District Ekiti in Suit No.64/36 and entitled Jinadu Lemomu of Igbimo v. Ekemode.
- The defendants state that the Ekemode who was sued in the action referred to in paragraph 15 above was the then Onikoyi of Ikoyi and a titular predecessor of the present plaintiff.
- The defendants deny paragraph 12 of the statement of claim and state that Ekiti Ekemode is in their (Ijabo people’s) land.
- The defendants deny paragraph 13 of the statement of claim and state that their ancestor have been cultivating on this land from time immemorial and the land has descended down the ages to them”.
There are in the record a number of affidavits which were sworn to by the first defendant and in which he described himself as of Igbimo and indeed in one affidavit he deposed inter alia as follows:-
“That I am the first defendant in the above matter and I swear to this affidavit for myself and on behalf of the people of Igbimo, via Ado-Ekiti”.
The pleadings directly put the title of the peoples of the defendants in issue and the oral evidence of the defendants and their witnesses unequivocally pitched the title of the defendants’ people against that of the plaintiff. In his final address to the court of trial the point was not then, as it is now being, raised by counsel for the defendants. At the very least the course which the proceedings took assumed not only that the defendants were properly sued as representing their peoples but also that the other members of their class are at one with them in the defence of their common title.
We think it is much too late now to re-open the issue by a subtle recourse to the intricate question of the actual meaning and application of order 7, rule 9. The judgement must encompass the persons and class that defended the action and whatever that judgement may be it ensures for or against the people of Igbimo as represented by the present appellants.
