Chief Ojogbo, Olaja-oriri Of Ugborodo & Ors V. Itsekiri Communal Land Trustees & Ors (1973)

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FATAYI-WILLIAMS, J.S.C

This suit was commenced in the Warri High Court by originating summons in which the Itsekiri Communal Land Trustees (as plaintiffs) have brought the people of the Ugborodo and Ogidigben to court to determine who are entitled to a certain sum of money which had been ordered to be deposited in court in another suit then pending in the Warri High Court.

On the face of the summons, one Dick Olueh (1st defendant), Ojogbo Erugbokuo (2nd defendant), Amorighoye Okpe (3rd defendant), and Tsuku Ejuetami (4th defendant) were shown as representing the people of Ugborodo and Ogidigben. Pleadings were ordered on 9th June, 1969. Before these were filed, however, the plaintiffs made two applications to the court, one for extension of time within which to file their statement of claim, the other that one Babine Ereku (now 2nd respondent), Olleh Akpienyi (now 3rd respondent) and Aniretoronwa Okotie-Uro (now 4th respondent) be substituted for the 1st, 2nd and 3rd defendants to defend with the 4th defendant the matter in the originating summons for and on behalf of the people of Ugborodo and Ogidigben. It must be pointed out that Amorighoye Okpe (the 3rd defendant) had died before the application for substitution. We must also mention at this stage that at no time up to the date of that application was any of the original defendants authorised by the court in accordance with the provisions of Order 7 rule 9 of the Western State High Court (Civil Procedure) Rules (which is still applicable in the Mid-Western State) to defend the action for themselves and on behalf of the people of Ugborodo and Ogidigben. As a result, the learned trial Judge treated the application as one in which the plaintiffs were asking the court to authorise certain persons to represent the Ugborodo and Ogidigben community in the claim before him.

The plaintiffs filed an affidavit in support of their application and the defendants who were being removed filed a counter-affidavit in which they clearly opposed the motion. After considering the application, the learned trial Judge, on 24th October, 1969, ruled, inter alia, as follows:-

“The 1st and 2nd respondents have no application in court asking that they be made to represent the community. Their case as I see it is that the applicants having originally intended to have them as representing the community must now not recant. There appears to be some disagreement among members of the community and so I do not propose to call a community meeting to decide who should represent the community as was done in London Association etc. v. Greenland Ltd. (1916) 2 AC 39. To do that will produce claims and counter-claims. It is clear to me that the Ugborodo and Ogidigben people are numerous and that they must therefore be represented in this matter. It is not suggested by Dick Olueh and those in his camp that the people put forward are not fit and proper persons to represent the community. In fact I am left in no doubt that they are. There is no application asking that Dick Olueh be made to represent the community. But if he and those in his camp feel that their interest in the community in this matter will not be adequately protected they have their remedies and I am prepared to entertain their application to be joined.

For now, those put forward appear to me to have authority to represent the community and I hereby order that Babine Ereku, Olleh Akpienyi, Aniretoronwa Okotie-Uro, and Tsuku Ejuetami do represent the people of Ugborodo and Ogidigben in this matter and that the title of the summons be amended accordingly.” (The underlining is ours).

An application by the two defendants (who still described themselves as the defendants in the title of the application) for leave to appeal against the above order was struck out on 12th December, 1969, after the learned trial Judge had observed as follows:-

“But to insist on being shown as parties on the court’s records the way they now do, appears to me to be conduct deserving of some blame. This application will be struck out in its entirety.

It is unfortunate that this does mean that the applicants will now have to go to Lagos to obtain an order from the Supreme Court enlarging the time within which to give a fresh notice of their application to seek leave to appeal, the prescribed time for giving the notice having lapsed; then armed with the Supreme Court Order enlarging the time, return to seek in this court leave to appeal; a process which no doubt will involve them in more trouble and expenses unless the Supreme Court grants them leave regardless of Order 7 rule 37.”

The two replaced defendants, it must be pointed out, neither applied to be joined as parties as suggested earlier by the learned trial Judge, nor did they apply to the Supreme Court for extension of time within which to apply for leave to appeal against the order of 24th October, 1969, by which they were replaced. Instead, they just stood by and allowed the case to go on until the parties reached a settlement and the terms of settlement had been filed in court and judgment given by consent in accordance with the terms of settlement on 22nd December, 1969.

Thereafter, Dick Olueh and Ojogbo Olaja-Oriri (that is, the two defendants who have been replaced) “for themselves and on behalf of Ugborodo and Ogidigben people,” applied ex parte to the Warri High Court on 23rd March, 1970, for leave to appeal against the consent judgment of 22nd December, 1969. The application was supported by an affidavit sworn to by counsel for the two defendants. Paragraphs (8) of the affidavit reads:-

“(8). That our clients’ application for leave to appeal to the Supreme Court against the Order removing them from the proceedings as representatives of the people of Ugborodo and Ogidigben has not been heard by the Supreme Court.”

As a matter of fact, no such application was pending in the Supreme Court at the time and the learned counsel for the appellants in this appeal admitted that much in the course of his arguments in this court. As the application was made ex parte, the learned trial Judge was probably unable to check the truth or falsity of the above averment which might have affected his decision to grant the two replaced defendants leave to appeal. Be that as it may, he rather reluctantly, granted the application after observing as follows:-

“Under Section 117 (6) (a) the applicant seeking leave to appeal is a stranger to the case and if the court must give him leave he has to swear to the affidavit in support of his motion and disclosing his interest and come to court to prosecute his application. These have not been done by the alleged applicants. However not wishing to be accused of depriving Mr. Boyo the chance of stating his case on appeal I grant him leave to file his appeal papers accordingly.”