Otuguor Ogamioba Vs Chief D. O. Oghene (1961)

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TAYLOR, F.J

This is an appeal from the ruling of the 1st September, 1959, made by Kester, J. of the High Court of the Warri Judicial Division in which he discharged a previous order of his of the 29th June, 1959.

At the hearing of the appeal, a preliminary point was taken by Counsel for the respondents to this appeal being entertained on the ground that there was no right of appeal to this Court from an interlocutory order of the High Court. We ruled, however, that we had jurisdiction and proceeded to hear the appeal for the following reasons. Leave to appeal against the interlocutory order had been obtained on the 19th October, 1959, the motion seeking such leave being filed on the 19th September, 1959. Counsel for the respondent did not and could not contest the point that at the time leave to appeal was obtained, which was before the coming into force on the 1st September, 1960 of the Federal Supreme Court Ordinance, 1960, the appeal lay with the leave of the Judge making the order by virtue of s. 6 (b) of the Federal Supreme Court (Appeals) Ordinance which was then in force. It is true that the Ordinance is no longer in force and that as from the 25th February, 1960, when L.N. 22 of 1960 deleted the whole of s. 3 (s. 6 in the 1958 edition) of the former Cap. 229 of Volume 6 of the Laws of Nigeria, there have been no Appeals from interlocutory orders of the High Court.

It is a well known rule of construction that unless the contrary appears, the rights of the parties in a pending proceeding are not affected by the alteration of the law during such pendency. In s. 14 (e) of our Interpretation Ordinance it is provided as follows:

The repeal of any Ordinance or law or any part thereof shall not, unless the contrary intention appear:-

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing ordinance or law had not been passed:……

Further it is expressly provided in s. 5 of the Nigeria (Constitution) Order-in-Council, 1960 that:

Any proceedings pending immediately before the commencement of this Order before any Court of law established by the Orders revoked by this Order for the Colony and Protectorate of Nigeria may be continued before the Courts established by this Order for Nigeria having jurisdiction in relation to the matter to which those proceedings relate as if they had been initiated before those courts after the commencement of this Order.

Any proceedings pending immediately before the commencement of this Order before Her Majesty in Council or any Court of law established by or under the Orders revoked by this Order for the Colony and Protectorate of Nigeria may be continued after the commencement of this Order notwithstanding that, by reason of the terms of this Osier, no such proceedings could be initiated after the commencement of this Order.

I now go on to deal with the substance of the appeal. The appellants, who were plaintiffs in the High Court, took out a summons against the respondents and in the heading of the summons and the Statement of Claim they purport to sue for themselves and on behalf of the Okpe Urhobo Community, Sapele. This action was instituted on the 22nd of May, 1959, at which time the High Court (Civil Procedure) Rules Western Region had come into operation, Osier 7, Rule 9 of which reads thus:.

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.

It is clear from the record that at the time the action was instituted and application brought by the present appellants to sue in a representative capacity, neither Counsel nor the Court was aware of the above provisions. The application having been made under the old practice prevailing before the coming into force of the High Court (Civil Procedure) Rules, 1958. The Court granted such leave on the 29th June, 1959.

On the 4th July, 1959 the respondents brought a motion on notice praying, inter alia, for an order that the order of the 29th June, 1959 be discharged and on the 9th September, 1959 the order for discharge was made.

Order 7, Rule 9, of the High Court (Civil Procedure) Rules, 1958 of the Western Region is identical with Order 16, Rule 9 of the Rules of the Supreme Court of England, and from their wording it would seem that two cases were contemplated:-