OTUGUOR OGAMIOBA AND OTHERS FOR THEMSELVES AND ON BEHALF OF OKPE URHOB COMMUNITY, SAPELE (APPELLANTS)
CHIEF D. O. OGHENE AND OTHERS (RESPONDENTS)
(1961) All N.L.R. 64
Division: Federal Supreme Court
Date of Judgment: 15th March, 1961
Case Number: FSC 61/1960
Before: Brett, F.J.J.
Order 7, rule 9, of the Western Region High Court (Civil Procedure) Rules (which is identical with Order 16, rule 9, of the Rules of the Supreme Court of England) provides that:-
"Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested."
The above rule replaced a previous rule, and was in force when this suit was begun. The plaintiffs, however, applied to the High Court for, and obtained, leave to sue in a representative capacity. The defendants applied to the High Court to have the Order giving leave discharged. The Order was discharged. The plaintiffs then applied for, and obtained leave to appeal to the Supreme Court against the Order in the defendants' favour.
This leave to appeal was obtained at a time when an appeal against an interlocutory Order lay by leave under section 6(b) of the Federal Supreme Court (Appeals) Ordinance, which was subsequently deleted. The defendants made a preliminary objection contending that there was no right of appeal.
Attention was drawn to section 14(e) of the Interpretation Ordinance, which relates to repeal and saves pending proceedings, and section 5 of the Nigeria (Constitution) Order-in-Council, 1960, which provides for the continuation of pending proceedings.
(1) When brought, the appeal was validly brought; it was not affected by the subsequent repeal of the enactment under which it was brought; and it could be continued under section 5 of the 1960 Constitution Order in Council.
(2) Given a common interest and a common grievance, a representative suit is in order if the relief sought is in its nature beneficial to all whom the plaintiff proposed to represent.
(3) In representative actions, the plaintiff is the self-elected representative of the others. He has not to obtain their consent.
(4) The defendants in the court below did not challenge the fact that the plaintiffs had a common interest, but merely sought to challenge their authority to bring the action in a representative capacity.
(5) The Order granting the plaintiffs leave to sue in a representative capacity was unnecessary, and not provided for in the Rules of Court, and the Order discharging that Order was also unnecessary, for the Order granting leave ought never to have been made.
Cases referred to:-
Duke of Bedford v. Ellis (1901) A.C. 1; 70 L.J. Ch. 102; 83 L.T. 86; 17 T.L.R. 139.
Markt. & Co. Limited v. Knight Steamship Co. Limited Sale & Frazer v. Knight Steamship Co. Limited (1910) 2 K.B. 1021.
APPEAL from High Court (West)
Okorodudu for Appellants
Ogunbanjo for Respondents.
The following Judgment was delivered:
Taylor, F.J.:-This is an appeal from the ruling of the 1st September, 1959, made by Kester, J. of the High Court of the Warri Judicial Division in which he discharged a previous order of his of the 29th June, 1959.
At the hearing of the appeal, a preliminary point was taken by Counsel for the respondents to this appeal being entertained on the ground that there was no right of appeal to this Court from an interlocutory order of the High Court. We ruled, however, that we had jurisdiction and proceeded to hear the appeal for the following reasons. Leave to appeal against the interlocutory order had been obtained on the 19th October, 1959, the motion seeking such leave being filed on the 19th September, 1959. Counsel for the respondent did not and could not contest the point that at the time leave to appeal was obtained, which was before the coming into force on the 1st September, 1960 of the Federal Supreme Court Ordinance, 1960, the appeal lay with the leave of the Judge making the order by virtue of section 6(b) of the Federal Supreme Court (Appeals) Ordinance which was then in force. It is true that the Ordinance is no longer in force and that as from the 25th February, 1960, when L.N. 22 of 1960 deleted the whole of section 3 (s. 6 in the 1958 edition) of the former Cap. 229 of Volume 6 of the Laws of Nigeria, there have been no Appeals from interlocutory orders of the High Court.
It is a well known rule of construction that unless the contrary appears, the rights of the parties in a pending proceeding are not affected by the alteration of the law during such tendency. In section 14(e) of our Interpretation Ordinance it is provided as follows:-
The repeal of any Ordinance or law or any part thereof shall not, unless the contrary intention appear:-
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing ordinance or law had not been passed:.....
Further it is expressly provided in section 5 of the Nigeria (Constitution) Order-in-Council, 1960 that:-
Any proceedings pending immediately before the commencement of this Order before any Court of law established by the Orders revoked by this Order for the Colony and Protectorate of Nigeria may be continued before the courts established by this Order for Nigeria having jurisdiction in relation to the matter to which those proceedings relate as if they had been initiated before those courts after the commencement of this Order.
Any proceedings pending immediately before the commencement of this Order before Her Majesty in Council or any Court of law established by or under the Orders revoked by this Order for the Colony and Protectorate of Nigeria may be continued after the commencement of this Order notwithstanding that, by reason of the terms of this Order, no such proceedings could be initiated after the commencement of this Order.
I now go on to deal with the substance of the appeal. The appellants, who were plaintiffs in the High Court, took out a summons against the respondents and in the heading of the summons and the Statement of Claim they purport to sue for themselves and on behalf of the Okpe Urhobo Community, Sapele. This action was instituted on the 22nd of May, 1959, at which time the High Court (Civil Procedure) Rules Western Region had come into operation, Order 7, rule 9 of which reads thus:-
Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested.
It is clear from the record that at the time the action was instituted and application brought by the present appellants to sue in a representative capacity, neither Counsel nor the court was aware of the above provisions. The application having been made under the old practice prevailing before the coming into force of the High Court (Civil Procedure) Rules, 1958. The court granted such leave on the 29th June, 1959.
On the 4th July, 1959 the respondents brought a motion on notice praying, inter alia, for an order that the order of the 29th June, 1959 be discharged and on the 9th September, 1959 the order for discharge was made.
Order 7, Rule 9, of the High Court (Civil Procedure) Rules, 1958 of the Western Region is identical with Order 16, Rule 9 of the Rules of the Supreme Court of England, and from their wording it would seem that two cases were contemplated:-
1 Where numerous persons having the same interest in a cause or matter wish to sue through one or more of their number as plaintiff or plaintiffs, and
2 Where such persons having the same interest are sued or wish to defend through one or more of their number as defendants.
In the former no authorisation of the court is necessary, whereas in the latter such authorisation is required. The wording of the Order is, in my view, perfectly clear, and similar expressions appear in Halsbury's Laws of England, 1st Edition, Vol. 23, at103, paragraph 182, as well as in the 1959 Annual Practice from337 to 340, under Order 16, Rule 9.
In the celebrated case of Duke of Bedford v. Ellis, 1901 A.C. 1, certain growers of fruit, flowers, vegetables, roots or herbs, sued on behalf of themselves and all other growers claiming that under the Covent Garden Market Act, 1828 they were entitled to certain advantages and preferential rights which the Duke, the lord of the market, persistently ignored. The Duke applied by summons to stay the action on the grounds that the plaintiffs are not entitled to sue in a representative character in defence of their alleged statutory rights and that they cannot join as co-plaintiffs in respect of their several grievances. Lord MacNaughten at8 says this:-
Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent.
That is, in my view, the fundamental principle underlying suits brought in a representative capacity. The result is that the application of the appellants of the 22nd May, 1959, asking for leave to sue in a representative capacity, and the order of the court made hereunder granting such leave, were both unnecessary and unproved for in the Rules of Court. That being the case, any application made under Order 10, Rule 11 of the same Rules to discharge the order was also unnecessary, for the order ought never to have been made. Learned Counsel in the course of his argument for the respondents urged that an application could be brought by the respondents challenging the appellants' claim to sue in such a capacity and has cited the cases of Markt & Co. Ltd v. Knight Steamship Co. Limited; Sale & Fraser v. Knight Steamship Co. Limited, 1910, 2 K.B. 1021, as authority for this proposition.
The plaintiffs in those cases claimed to be suing on behalf of themselves and 44 other persons, firms, companies who were owners of cargoes on board the steamship Knight Commander, which was sunk by a Russian Cruiser. After service of the writs, the defendants took out a summons in each action asking that the writ should be set aside, or so much of the writ as referred to parties other than the plaintiffs named in the writ should be struck out on the ground that the case did not fall within Order16, rule 9 and the plaintiffs could not sue in a representative capacity. The distinction between that case and the present can be seen in the following passage from the Judgment of Fletcher Moulton, L.J., at1035, where he says that:-
There are two modes in which actions may be brought to establish the individual rights of several persons in one and the same action. The one mode is by bringing them as plaintiffs, the other is by one or more bringing a representative action in respect of all of them. These modes of procedure are entirely distinct in character and the cases to which they are applicable are widely different and are laid down in separate and distinct rules, the former in Order 16, rule 1 and the latter in Order 16, rule 9. The relation of the parties interested to the conduct of the action differs in the two cases, as does the effect of the Judgment.
The learned Lord Justice then went on to say, as did Vaughan Williams, L.J., that there was no common interest shown to exist between the plaintiffs in that action. In the appeal before us the application brought by the respondents in the lower Court did not challenge the fact that the plaintiffs had a common interest within Order 7, rule 9, but merely sought to challenge their authority to bring the action in that capacity. In the case to which I have just made reference Fletcher Moulton, L.J., said further at1039, after quoting Order 16, rule 9, that:-
Nothing could be more striking than the contrast between the language of this rule and that of Order 16, rule 1. The reason is obvious. In cases under rule 1, all the parties have the status and responsibilities of ordinary litigants and the
plaintiffs are such by their own consent.
In representative actions it is wholly different. The plaintiff is the self-elected representative of the others. He has not to obtain their consent. It is true that consequently they are not liable for costs, but they will be bound by the estoppel created by the decision.
The case to which Counsel drew our attention was a case more within Order 16, r.1, which is identical with Order 7, rule 1, of the High Court (Civil Procedure) Rules 1958 than Order 16, r.9 and the corresponding Order 7, rule 9 of the 1958 Rules.
Mr Ogunbanjo further argued that at least the capacity in which the plaintiffs sue should be so amended as to exclude the respondents defendants, who are also members of the Okpe Urhobo Community. The obvious answer to this is that the very fact that they are sued as defendants shows their exclusion from the parties represented by the appellants.
This appeal must succeed and the orders of the 29th June and 1st September, 1959 are accordingly set aside. Insofar as the appeal was set in motion by the error of the present appellants in making the unnecessary application in the lower Court, I would order that each party bears its own costs in the lower Court and in this Court.
BRETT, F.J.:- I concur..
BAIRAMIAN, F.J.:- I concur..