Chief Ojah Ojah & Ors v. Chief Eyo Ogboin & Ors. (1976)

LawGlobal-Hub Lead Judgment Report

O. MADARIKAN, J.S.C.

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, 4th and 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 the 12th 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 of Claim and line 4 of sub-paragraph 2 of paragraph 19 of the Statement of Claim.

(b) By substituting a comma for the full-stop at the end of paragraph 2 of the Particulars of Claim and sub-paragraph 2 of paragraph 19 of the Statement of Claim, and adding thereafter the following words,

‘or such sum or amount as may be determined by the court to represent plaintiffs’ fair or equitable share of the sum of N1,551.50 aforesaid’”.

When the motion was called on the 3rd of 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.