Chief A.O. Uku & Ors .v. D. E. Okumagba & Ors. (1974)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C. 

This appeal raises two fundamental points of law in relation to jurisdiction, practice and procedure. The first point concerns the jurisdiction of the High Court of the Mid-Western State as to the joinder of parties in exercise of its powers under the Civil Procedure Rules. The second relates to the competence of a Court to act on apparently and patently conflicting affidavit evidence without taking oral evidence with a view to testing and evaluating such evidence for the purpose of resolving such conflicts.

In this judgment, the plaintiffs who instituted the substantive suit which has resulted in the present appeal and the Shell BP Petroleum Development Company Limited, the 3rd defendant in the said suit, will throughout be referred to as the plaintiffs and the 3rd defendant respectively. Both played no pan in the application, the subject matter of this appeal, both in the High Court and in this Court. The only parties concerned in this procedural gymnastics are the 1st and 2nd defendants in the suit herein to be referred to as the 1st and 2nd appellants, who defend the suit on behalf of themselves and the Olodi, Oki and Ighogbadu families of Okere, Warri; and the intervener, Omosohwofa Eboh, the 4th defendant, herein to be referred to as the respondent. It is his application which has occasioned this appeal.

The circumstances which gave rise to the appeal are these: On 27th December, 1968 the plaintiffs in suit No. W /63/68 in the High Court, Warri, claimed against the appellants and the 3rd defendant the following:

“(i) An Order directing the 1st defendant to pay over to the plaintiffs all monies paid by the 3rd defendant to him as annual rents and/or compensation in respect of the 3rd defendant’s occupation and user of the Okere (Plaintiffs) Section of the Warri By-Pass.

(ii) An Order directing the 2nd defendant to pay over to the plaintiffs the sum of N388 wrongfully paid to him by the 3rd defendant as compensation for oil palm trees destroyed by the 3rd defendant in the course of constructing the Warri By-Pass over the Okere Section of the said By-Pass.

(iii) An Order directing the 3rd defendant to pay over to the plaintiffs all monies payable as rents and/or compensation in respect of the said Okere Section of the Warri By-Pass.

(iv) An injunction restraining the 3rd defendant their servants and/or their agents from making any payment of money or having any dealing or transaction with the 1st and 2nd defendants and/or their agents or privies and/or with any other person or persons other than the plaintiffs and/or Itsekiri Communal Lands Trust Warri in respect of the Okere Section of the Warri By-Pass.

(v) Any other reliefs.”

From the endorsement on the writ of summons, it should be noted that the 1st appellant was sued for himself and on behalf of Olodi family while the 2nd appellant was therein described as sued for himself and on behalf of Okere Urhobo Community.

On 17th January, 1969, the 1st and 2nd appellants applied to the Court for an order:

(1) to strike out the name “Okere Urhobo Community” from the writ of summons and to add thereto or substitute therefore as defendants the names of “Oki and Ighogbadu families of Okere, Warri”; and

(2) to authorise the 1st and 2nd appellants to defend the suit for them selves and on behalf of the Olodi, Oki and Ighogbadu families by whom they had been selected and authorised to defend the said suit.

The application was ex facie stated to have been brought in pursuance of Order VII Rules 10(2) and 11 of the High Court (Civil Procedure) Rules. It was supponed by Affidavit sworn to by the 1st appellant and certain representatives of the Oki and Ighogbadu families.