Chief Ajah Ojah Vs Chief Eyo Ogboni & Ors (1976) LLJR-SC

Chief Ajah Ojah Vs Chief Eyo Ogboni & Ors (1976)

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MADARIKAN, JSC. 

In Suit No. C/84/73, the plaintiffs took out a Writ of Summons endorsed as follows: “Plaintiffs’ claims against the defendants, jointly and severally, are as follows:

(1) A declaration that the plaintiffs are lessors of about three-fifths of the Biakpan Rubber Estate land held on lease by the 7th defendant.

(2) An order directing the defendants to pay over to the plaintiffs the sum of N930.90 being three-fifths of the amount of N1,551.50 paid by the 7th defendant as rent for the aforesaid rubber estate for the year 1972; to the 6th defendant to pay over to the plaintiffs’  community and the 1st, 2nd, 3rd, 4thand 5th defendants which amount was actually collected by the 4th defendant, who refused or neglected despite repeated demands to pay over to the plaintiffs the latter’s own aforesaid share of N930.90, or anything”.

The parties duly filed their respective pleadings and the case eventually proceeded to trial before Ecoma, J. Three witnesses (including the 2nd plaintiff) testified for the plaintiffs; and after the 3rd and 4th defendants had testified for the 1st to 5th defendants who had jointly filed a Statement of Defence, the case was adjourned on the 6th of June, 1974, to the 3rd of July, 1974 “for continuation and address”.  The plaintiffs however filed a motion on the12th of June, 1974 seeking the following orders:

“(1) An order granting approval to the plaintiffs on record to bring this action for themselves and as representing the people of Etono 2 village in Ubaghara Clan, Akamkpa Division.

(2) An order granting leave to the plaintiffs to amend their Particulars of Claim and Statement of Claim as follows:

(a) By substituting the word (sic)1973 for the word (sic) 1972 in line 4 of paragraph 2 of the Particulars ofClaim and line 4 of sub-paragraph 2 of paragraph 19 of the Statement of Claim.

(b) By substituting a comma for thefull-stop at the end of paragraph 2 of the Particulars of Claim andsub-paragraph 2 of paragraph 19 of the Statement of Claim, and addingthereafter the following words, ‘or such sum or amount as may bedetermined by the court to represent plaintiffs’ fair or equitable share of thesum of N1,551.50 aforesaid’”.

When the motion was called on the 3rdof July, 1974, learned counsel for the 1st to 5th defendants, Mr. Orok, raised some preliminary objections, and the matter was then adjourned to the 25th of October, 1974 for “ruling and continuation”. For the reasons stated in the ruling, the learned Judge refused both arms of the plaintiffs’ application.  This is an appeal by the plaintiffs against that ruling. At the hearing of the appeal, two grounds of appeal were argued.

One ground was directed against the refusal of the lower court to grant the order sought in the first arm of the motion; and the other ground was directed against the refusal to grant the order sought in the second arm of the motion. It is convenient to consider the two grounds of appeal separately and we shall now proceed to deal with the first ground ofappeal.

As stated earlier, the prayer sought by the plaintiffs in the first arm of the application was for an order granting them approval to sue for themselves and as representing the people of Etono 2 village in Ubaghara Clan, Akamkpa Division. The application was supported by an affidavit sworn to by the 2nd plaintiff. A document marked “Annexure A” was attached to the affidavit. Annexure A is a written authority purporting to empower the plaintiffs to sue in a representative capacity. The said “Annexure A” bore the thumb impressions of six persons who described themselves therein as the chiefs and principal family of the village. After setting out the salient portion of the affidavit in his ruling, the learned Judge pointed out that the defendants did not swear to any counter-affidavit; and expressed the view that in substantiating his preliminary objections, Mr. Orok in fact argued the motion. The learned Judge therefore proceeded to consider the motion on its merits; and in the concluding portion of his ruling, he declined to grant the order to sue in a representative capacity because –

1. the 2nd plaintiff did not disclose what interest he or those who thumb impressed Annexure A had in the suit; and

2. those who thumb impressed Annexure A did not file any affidavits.

In support of the first ground of appeal, learned counsel for the plaintiffs/appellants argued that as the first plaintiff was the head chief of the village, it was not necessary for him to seek an order of court to sue in a representative capacity. Counsel further contended that on the authority of Chief E.E.E. Duke & Ors. v. E.G.D. Henshaw (1944) 10 WACA 27, the first plaintiff had the right, as head chief, to sue in his name for the protection of the rights of the community. We find it difficult to see the strength of the argument of counsel as this case is readily distinguishable from Duke’s case (supra). In that case, the amended claim was for rent and tribute; and it is important to note that the observation of the West African Court of Appeal, sought to be relied upon by counsel, that the appellant had aright to sue in his name for the protection of the rights of the family was made on the strength of a previous judgment wherein it had been decreed that the appellant was entitled to control and manage family property and to receive rents and profits accruing therefrom. We therefore cannot escape coming to the conclusion that the argument of counsel partakes of some shortcomings because if the observation of the West African Court of Appeal is construed in its proper context, it certainly cannot support the contention of counsel. Counsel however submitted, in the alternative, that if an order of court was necessary, there were ample facts on which the learned Judge ought to have granted the order. We think that he is on firm ground here as the application in question was brought under Order IV Rule3 of the High Court Rules which provides as follows:-

“Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the court, be authorised 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”.

In our view, the learned Judge was clearly in error when he refused the first arm of the application. In the 2nd arm of the application, the plaintiffs sought leave to amend their Particulars of Claim and Statement of Claim in the manner set out in the application. In his ruling, the learned Judge considered that the application for amendment should have been brought earlier in the proceedings; and, for that reason and other reasons stated in the ruling, refused the application.  Learned counsel for the plaintiffs/appellants has attacked this portion of the ruling on the grounds that refusal of leave to amend pleadings was erroneous in law and amounted to an injudicious exercise of the discretion vested in the learned Judge.  The circumstances under which a court may grant leave to amend pleadings are set out in Order XXXIV of the High Court Rules as follows:

“The court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just”. In exercise of the powers thus conferred, the court must have more regard to substance; and, as a general rule, an amendment under Order XXXIV will be granted if it is “for the purpose of determining in the existing suit the real questions or question in controversy between the parties”. It is well settled law that an amendment ofpleadings should be allowed unless –

(1) it will entail injustice to therespondent;

(2) the applicant is acting malafide;

(See Tildesley v. Harper (1878) 10 Ch.D.393 atp.396). or (3) by his blunder, the applicant hasdone some injury to the respondent which cannot be compensated by costs orotherwise. (See Tildesley’s case (supra);Oguntimehin v. Gubere (1964) 1 All NLR176 at p.179; and Amadi v. Thomas Aplin& Co. Ltd. (1972) 1 All NLR.409).

The correct principle to guide acourt in considering whether to grant an application for amendment of pleadingswas aptly expressed by Bowen, LJ., in Cropper v. Smith (1884) 26 Ch.D. 700 atpages 710 and 711 when he said: “I think it is a well establishedprinciple that the object of courts is to decide the rights of the parties, andnot to punish them for mistakes which they make in the conduct of their casesby deciding otherwise than in accordance with their rights…….I know of nokind of error or mistake which, if not fraudulent or intended to overreach, thecourt ought not to correct, if it can be done without injustice to the otherparty.

Courts do not exist for the sake of discipline, but for the sake ofdeciding matters in controversy and I do not regard such amendment as a matterof favour or of grace …….… It seems to me that as soon as it appears thatthe way in which a party has framed his case will not lead to a decision of thereal matter in controversy, it is as much a matter of right on his part to haveit co

Other Citation: (1976) LCN/2319(SC)