Omosohwofa Eboh & Anor V. Willie Oki & Ors (1974)

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FATAYI-WILLIAMS, J.S.C. 

In Warri High Court Suit No. W/28/71, the plaintiffs claimed against the 1st, 2nd, 3rd and 4th defendants jointly and severally as follows:

A(1) A declaration that the relationship orally created between the plaintiffs’ family of OLODI of the first part, 1st and 2nd defendants’ family of OKI of Okere of the second part and 3rd and 4th defendants’ family of IGHOGBADU of OKERE of the third part sometime in 1950 at Okere, within the Warri Judicial Division, whereby farmlands hitherto cultivated by members of the respective families were merged and/or pooled together for the common purpose of development for alienation for profit in the joint names and on behalf of “OLODI OKI and IGHOGBADU” is a partnership.

2(a) A declaration that the said partnership or the partnership orally made in Warri within the jurisdiction of this Honourable Court sometime in 1950 between plaintiffs’ family of Olodi on the first part, 1st and 2nd defendants’ family of Oki of the second part and 3rd and 4th defendants’ family of Ighogbadu of the 3rd part has been dissolved as from 22nd January, 1971 by plaintiffs’ notice of dissolution.

OR (b) Dissolution of the said partnership or the partnership orally made in Warri between the three families aforesaid at Okere within the jurisdiction of this Honourable Court sometime in 1950.

(3) As against the 5th defendant, an account of all receipts and payments, dealings, transactions, leases or grants in respect of the OLODI, OKI & IGHOGBADU LAYOUT in respect of which he has acted as agent or Secretary for the three families constituting the partnership.

(4) Other suitable reliefs.

(b) ALTERNATIVELY, PARTITION of all the lands, rights and interests that are jointly or commonly owned and/or developed jointly or in common for alienation by the OLODI, OKI and IGHOGBADU families in Okere within the jurisdiction of this court.

After service of the writ, but before pleadings were ordered, the 2nd and 3rd defendants brought an application seeking the following orders from court:

(1) That the names of the 1st and 4th defendants WILLIE OKI and IWERE ODOBRIKEN be struck out of the writ of summons and any subsequent proceedings and JAMES OKI and OLE ONORIOBE of OKI family and IGHOGBADU family respectively be substituted as 1st and 4th defendants respectively herein for the above-named WILLIE OKI and IWERE ODOBRIKEN.

(2) That OTOMI EBOH, DAVID EBOH, HENRY U. OKUMAGBA and ANTHONY OKUMAGBA all members of OLODI family be added as co-defendants in this action.

(3) That the action be defended by the 2nd and 3rd defendants, the substituted and added defendants named in (1) and (2) above for themselves and on behalf of the Olodi, Oki and Ighogbadu families of Okere, Warri SAVE and EXCEPT the representative plaintiffs Omosohwofa Eboh and Samuel Okumagba and their “constituency” or those members of Olodi family represented by the said plaintiffs.

(4) That the writ of summons and all subsequent proceedings herein be amended accordingly.

The application was argued at length and the learned trial judge delivered a reserved ruling on 24th June, 1971, the relevant portion of which reads as follows:

“I propose therefore to allow them to defend this suit for themselves and on behalf of all the dissenting members of the Olodi family.

Similarly it is clear to me that in the Oki family, Willie Oki the head leads a faction and that Eworitsemogha Oki leads another. I propose therefore to allow Willie Oki to defend this action for himself and on behalf of all those whom I shall refer to as belonging to “Willie Oki’s faction”. Eworitsemogha Oki and James Oki will of course defend for themselves and on behalf of all members of Oki family whom I shall refer to as belonging to “Eworitsemogha Oki’s faction”.

By the same token Omoforitse Ighogbadu and Ole Onoriobe will defend this suit for themselves and on behalf of all members of Ighogbadu family whom I will refer to as “the Omoforitse faction” and Iwere Odobriken will defend for himself and all members of Ighogbadu family whom I will refer to as “Iwere Odobriken faction.”

And the representations proposed above are hereby made an order of this Court accordingly.

I have made the above order as to parties and their representations in this suit with only one cardinal guiding point in view namely, to allow all who may wish to advance a view contrary to those held by others to come forward and do so. Whether on the view of the majority or minority this partnership should be dissolved or not will depend on the substance and cogency of the reasons advanced at the hearing. If no one has asked for the order I have made in the way I have made it I say that Order 35 Rule 1 of the High Court Rules do vest me with discretion to make all such orders whether asked for or not as I consider necessary for doing justice in any matter before the Court.

It only remains to deal with the counter-applicant’s prayer that all the defendants do defend for the Olodi, Oki and Ighogbadu families of Okere, Warri. It is clear to me that owing to the nature of the claim in Court it is not permissible to make such an order. When the three families were acting against what I will call “strangers” to the families certainly the need to present a common or a union or partnership front is apparent. At this stage the fight is among the component members of that Union and the cry now is “To they tents O! Israel.” Every family has now to move into its tent to get armed for this battle. That prayer to defend for Olodi, Oki and Ighogbadu families is accordingly refused.”

The 2nd, 3rd, 4th, 5th, 7th to 11th defendants/applicants (D.E. Okumagba, James Oki, Ole Onoriobe, Otomi Eboh, Eboh, David Eboh, Henry U. Okumagba and Anthony Okumagba) being aggrieved by the above ruling have brought this appeal after obtaining leave of the lower court on the following grounds:

“1. The learned trial Judge erred in law in holding that there was a partnership between the families of Olodi, Oki and Ighogbadu of Okere, Warri when:

(a) One of the reliefs sought by the plaintiffs was “a declaration that the relationship orally created between the plaintiff’s family of Olodi of the first pan, 1st and 2nd defendant’s family of Oki of Okere of the second pan and 3rd and 4th defendants’ family of Ighogbadu of Okere of the third part sometime in 1950 at Okere, within the Warri Judicial Division, whereby farmlands hitherto cultivated by members of the respective families were merged and/or pooled together for the common purpose of development for alienation for profit in the joint names and on behalf of “Olodi, Oki and Ighogbadu” is a partnership, “which issue could not be determined before the exchange of pleadings and hearing of oral evidence in the case.

(b) A partnership cannot be formed nor can it exist between families who are not juristic persons.

2. The learned trial Judge erred in law in failing to consider and or consider adequately the argument advanced and the authorities cited at the hearing of the motion, on behalf of the appellants in this case.
3. The learned trial Judge erred in law and on the facts in accepting the evidence in the counter affidavit of the 6th defendant (Iwere Odobiken) about his being a member of Ighogbadu family, without hearing oral evidence when his claim to the membership of Ighogbadu family is disputed in the affidavit in support of the application.
4. (i) The learned trial Judge misdirected himself in law and on the facts in holding that the disputed membership of 6th defendant (Iwere Odobriken) did not constitute the crux of the application made by the 2nd and 4th defendants in this case when:

In the end the learned trial Judge not only declared him a member of this family but in fact assigned to him a faction known as “I were Odobriken faction.”

(ii) The learned trial Judge erred in law in holding that Willie Oki is the head of the Oki family when there is no conclusive evidence whatsoever to show that Willie Oki is the head of the Oki family and that he controls a faction in that family.

“5. The learned trial judge misdirected himself on the facts in holding:

(a) That Otomi Eboh, David Eboh, Henry Okumagba and Anthony Okumagba have not been shown to be representing or even belonging to any of the three families of Olodi, Oki and Ighogbadu when their membership of Olodi family and their selection by the three families except the dissident members were fully set out in paragraph 11 of the affidavit supporting the defendants/appellants’ application.

(b) That the four members of Olodi family in paragraph 5(a) above were in the minority and were the dissident members of the family because the Counsel for the plaintiffs said so during argument without any evidence either affidavit evidence or oral evidence given on oath.

6. The learned trial Judge erred in law and on the facts in not making Willie Old and Iwere Odobriken plaintiffs in the case, having regard to the counter affidavit filed by them and the Exhibits attached to the 2nd and 4th defendants’ affidavit and documentary evidence for the learned trial Judge to infer and find that there was collusion between the plaintiffs and 1st and 6th defendants.
7. The learned trial Judge misdirected himself in holding that the division of opinion in the family appeared to have arisen as a result of how the “11 the defendant conducted the monetary and other affairs of the Union when there was no evidence to that effect.
8. The learned trial Judge erred in law in making a surprise call on the 11th defendant (a layman) to reply to legal argument contained in the unexpected further submission permitted by the learned Judge to be made by Barrister N.E. Akporiaye, Esq. holding Barrister Ideh’s brief for the plaintiffs on a date fixed for the court’s ruling on the application of the 2nd and 4th defendants, when the counsel on the other side was someone new to the case holding Dr. M. Odje’s brief and instructed only to take the ruling.
9. The learned trial Judge was wrong to have allowed a counsel who had appeared for 1st and 6th defendants at an earlier stage of the proceedings to appear and hold brief for the counsel for the plaintiffs.
10. The decision is against the weight of evidence.

Learned counsel for the appellants, Dr. Odje in dealing with the first ground of appeal, took us through various opinions of the lower court’s ruling in order, as he put it, to show that it was apparent that on the claim before the court and the stage the proceedings had reached, the court was in error to have expressed views which it could only do at the conclusion of the evidence in the case.

Learned counsel while on this ground, referred in particular to the following passages in the ruling:

There are in this matter three families namely, the Olodi family, the Old family and the Ighogbadu family. There appears to have been some sort of union formed by these three families. They appear to own property jointly in the names of all the families. The Plaintiffs, members of the Olodi family, contend that that union is a partnership in law and on the 22nd day of February, 1971 served on the members of the other two families, Old and Ighogbadu a notice dissolving the alleged partnership.”

“I have made the above order as to parties and their representations in this suit with only one cardinal guiding point in view namely, to allow all who may wish to advance a view contrary to those held by others to come forward and do so. Whether on the view of the majority or minority this partnership should be dissolved or not will depend on the substance and cogency of the reasons advanced at the hearing.” . . . . . .

“But all these, material though they may be, do not constitute the crux of the counter-application. The real cause of trouble, the main reason for bringing the counter application is that there is a division of opinion among the members of each of the three families and this division of opinion appears to me to have arisen as a result of how the 5th defendant Daniel E. Okumagba conducts the monetary and other affairs of the Union. It is as yet too early to know all issues and grievances to be laid out and aired in this suit. But reading through the previous court proceedings exhibited and listening to the arguments and the role played in Court by the 5th defendant himself during the argument, I cannot help but feel that his own conduct appears to be behind the conflict of opinion in the three families.”

After indicating that he did not wish to advance argument in respect of grounds 2, 5-10, learned counsel next dealt with grounds 3 and 4 together. The pitch of counsel’s complaint under these grounds was that although there were conflicting contentions in the several affidavits filed in support of this application, the learned judge without examining the rival deponents on oath proceeded to make specific findings of fact in the face of such apparent conflict.

Attention was drawn to Order 10, Rule 24, of the High Court (Civil Procedure Rules) of Western Nigeria, which rules are applicable in the Midwestern State of Nigeria. The said rule deals with evidence in interlocutory proceedings, and reads:

“In addition to or in lieu of affidavits the court may, if it thinks it expedient, examine any witness viva voce, or receive documents in evidence, and may summon any person to attend to produce documents before it or to be examined or cross-examined before it in like manner as at the hearing of a suit.”

It was also part of counsel’s contention, that it would still have been obligatory, for the court to examine witnesses on oath under the above quoted rule, whether or not the parties themselves desired it. In support of this contention counsel relied on the decision of this court in Akinsete v. Akindutire reported in (1966) 1 All Nigeria Law Reports p. 147.

A careful examination of the record leaves us in no doubt that, as between the appellant on the one hand and the respondents on the other, there was a conflict of affidavit evidence on the following vital issues among others:

(a) Whether Willie Oki, the 1st respondent was the Head of the Oki family or whether Eworitsemogha Oki was.

(b) Whether Iwere Odobriken was or was not a member of the Ighogbadu family.

(c) Whether Otomi Eboh, David Eboh, Henry U. Okumagba and Anthony Okumagba represented a minority and dissentient group within the Olodi family.

We are in no doubt that, while a court, in a given case, may act on affidavit evidence, it would be unsafe to do so, where the evidence is strongly contested and where issues of credibility can only be resolved upon the court’s view of witnesses. The above was the view taken by this court in the case of Akinsete v. Akindutire (Supra) where at p. 148 of the said judgment it said as follows:

“In the face of the direct conflict of affidavit on crucial facts, the learned judge, we think, should have heard oral evidence from the deponents or such other witnesses as the parties may be advised to call. The judgement of Bannerman, J., on appeal which the West African Court of Appeal upheld in Government of Ashanti v. Adjuah Korkor, etc. 4 W.A.C.A. 83 is authority for this. It is, of course, open to the court to act on affidavit evidence in cases in which the facts are not disputed or in which the parties agree that this should be done; and it is only fair to say that in the present case neither side asked to be allowed to cross-examine any of the deponents or to call any witness. We do not however, think that this omission by the parties can be taken to “amount to consent that affidavit evidence be used in this case in which the facts in issue were irreconcilably in conflict.”

Such also, was the attitude of Kekewich, J., in Bonhote v. Henderson

(1895) (1) Chancery p. 742 and of Eve, J., in Constantinid v. Ralli (1935) Chancery p. 427. In the Constantinidi case, the learned judge at pp. 437-438 stated as follows:

“I think there is an accumulation of facts which precludes and must preclude, the plaintiff from succeeding in rectifying the settlement. It is obviously not a case which the court would decide upon mere affidavit evidence: Bonhote v. Henderson: there would have to be cross-examination and the whole matter would have to be determined after oral evidence had been given.”

It seems to us, that as the existence or otherwise of an alleged partnership is one of the main issues raised in the case in hand, a determination of same would be only feasible after pleadings, and where necessary, when all the evidence has been heard. We are thus in no doubt that learned counsel’s complaint under the first ground of appeal argued is amply borne out by the record. Also for the reasons already given, we are satisfied that the learned judge was in error to have acted, as he did, on the affidavit evidence before him. We are equally satisfied that the aspersions cast by the learned judge upon the role played by the 5th defendant/appellant, Daniel Okumagba with regard to the conduct of the monetary affairs of the alleged union is not supported by the printed record.

In the result the appeal succeeds and it is allowed. The orders made in the ruling in these proceedings by Atake, J. on 24th June, 1971 are set aside in their entirety. We also order that further proceedings, if any, in this matter should continue before another judge of the Warri Judicial Division. The appellants are allowed costs against the respondents assessed at N105.60.

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Other Citation: (1974) LCN/1963(SC)