Elijah Idise & Ors v. Williams International Limited

This is an appeal from the judgment of the Court of Appeal, Benin division in which it set aside the judgment of Ughelli High Court presided over by Omo-Agege J, (as he then was) striking out the plaintiffs’ (now appellants’) claim for incompetence on ground that the plaintiffs could not in law sue in a representative capacity.
In the trial court, the six plaintiffs (jointly for themselves and on behalf of Owevwen Community Agbarha) sued the defendant claiming the sum of N500,000.00 as general damages for negligence resulting in damaging the only road leading from Owevwen village to Ughelli – Agbarha Otor Road, rendering it impassable to vehicular as well as pedestrian traffic.
The claims were denied by the defendant. On the order of the trial court, the parties filed and exchanged pleadings.
The particulars of negligence and the damages suffered as a result thereof are contained in the following

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paragraphs of the Statement of Claim:-
“9. The defendant, while laying pipes across the said road at a point a few yards from Owevwen village, dug a deep trench across the road but after laying the pipes negligently filled it up that it left that portion as a valley into which all rain Water in the area around it collects and thereby cause a deep pool of water across the road which also makes it impossible for vehicles to pass to and from the plaintiffs’ town. It also creates difficulties for member of Owevwen community to pass through it to their farms.
Particulars of Negligence
(i) Failure on the defendant to cover up the track of the pipeline across the road so as to avoid water collecting on that portion of the road.
(ii) Failing to foresee that if the pipeline track is not raised high it will be covered up by water during the rainy season.
10. The damage caused to the road as pleaded in paragraphs 8 and 9 above paralysed the economic life of the plaintiffs’ community from about December, 1979 till the time the plaintiffs filed this action and still doing so.
11. Many a time women with cassava loads on their heads returning from their farm would fall with their loads when attempting to wade across the pool of water stretching across the road as a result of the negligence of the defendant. Men also carry their bicycles on their shoulders or heads across the pool of water. Traders could not carry their wares to the market or got to Warri and  other places to buy wares. The plaintiffs shall tender during the trial some of the photographs taken during the period to show the pathetic and sorry  situation plaintiffs

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found themselves as a result of the defendant’s negligent act.
12. The plaintiffs could not attend even their own market at the junction due to the horrible condition of the road.
13. Some members of the community who during the process of attempting to walk across that portion of the road got themselves injured and were treated by native doctors and experts in bone setting. ”
On the evidence adduced before him, the learned trial Judge made the following findings –
“I find that by their negligent conduct they caused the road to be flooded as alleged and thereby made it impossible for vehicle to use it to and from Owevwen Village as before. The photograph, Exhibit “B”, clearly shows the difficulties experienced by the people – in it, is a man with trousers rolled up to his knees trying to push his motor-cycle through the pool; some three other men each
carrying his bicycle and yet another man all trying to find their way. The look in their faces is one of sadness.
“I am of the opinion that the company owed a duty of care to Owevwen Community in respect of the road and having interfered with it were under a duty to return it to its original condition, that is, to keep it motorable; for their failure to do so they are liable to the plaintiffs.
Now to damages – As could be seen from the evidence, the economic life of the plaintiffs was paralysed over a period of time. I believe the evidence that the company paid no heed to the complaints made to them.”
He then finally concluded –
“The company in this case have by their negligent operations caused hardship to the plaintiffs, turned a deaf

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ear to their complaints and then self-righteously turned round to claim justification under cover of a third party, namely, Nigerian National Petroleum Corporation, who are not before the court. In all the circumstances I will award the plaintiffs the sum of N200,000.00 as general damages plus costs”
Aggrieved by the judgment of the trial court the defendant appealed against it in the Court of Appeal Benin Division. It is noteworthy that one of the issues raised and canvassed in the Court of Appeal is the competence of the action as instituted in the trial court. On this decisive issue, Dahiru Musdapher, J.C.A. who delivered the lead judgment, with which both Uche Omo J.C.A. (as he then was) and Ejiwunmi, J.C.A., agreed, reached the following conclusions –
The argument of the learned counsel for the respondent is valid only to the extent, that all the members of the Community who built that foot-path into a road had interest in protecting that road against any damages, in other words if the action of the respondents in the instant case was for the damages done to the road simpliciter, the respondents herein might have a common cause since all of them had interest in keeping the road in a motorable manner. The claims of the respondents for general damages are pleaded in paragraphs 11, 12, and 13 of the statement of claim , and the action as per paragraph 15 of the Statement of Claim was brought to claim damages for a great deal of “suffering, inconvenience, economic loss and physical injuries”. It is very clear from the above that not all the respondents have the same or common interest or cause of action

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against the appellants as provided for under the provisions of Order 7 rule 9 referred to above.
It is essential that all the plaintiffs must have the same interest and the same cause of action before an action in a representative capacity can be commenced.”
The learned Justice then referred to the case of S. Oraghade v. Onitiju (1962) 1 All N.L.R. 332 and went on-
“Similarly the respondents could not in this case sue on behalf of the other members of the Community for personal injuries suffered by the individual members of the Community.”
“Another point worthy of mention, is that the respondents sued for negligence and claimed damages in lump sum against specific particulars of damages as enumerated above under paragraphs 11, 12 and 13 of the Statement of Claim.
To be able to assess the claim everyone of the plaintiffs should give evidence as each claim if proved would give rise to an amount of damage to be awarded to each claimant. In the instant case it would be impossible for the court to assess the damages and to relate the award to each claimant as the factors to be considered in relation to each individual vary so much. See Emono v. Nigerian Ports Authority (1966) L.L.R., 208
The claims here were for specific and different causes of action which arise as the result of the alleged destruction of the road. The damages suffered by each member of the community is separate and specific and in awarding general damages different factors must be considered.”
The learned Justice then allowed the appeal, set aside the decision of the trial court and in place thereof

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substituted an order of striking out the respondents’ claim as “incompetent”
The plaintiffs, dissatisfied with the Court of Appeal decision, have now appealed to this Court. And for the purpose of determining this appeal, the plaintiffs and the defendant will be referred to as the appellants and respondent respectively.
In compliance with the provisions of the rules of this Court, the parties filed and exchanged briefs of argument.
In the brief of argument filed by the appellants, the following issues were raised for determination
“1. Were the Justices of the Court of Appeal justified in permitting the respondents to argue a fresh or new point of law that was not pleaded, raised and contested in the trial court?
2. Is it correct to hold as the Justice of Court of Appeal did, that the plaintiffs on record have no common interest with Owevwen community to which they themselves also belong? In other words is the case of Oragbade v. Onitiju (1962) WNLR 21 applicable to this case.
3. Was the Justices of Court of Appeal (Uche-Omo in particular) right to hold that the appellants should have founded their claim on nuisance instead of Negligence?
4. Where the Justices of Court of Appeal (Uche-Omo in particular) right in holding that:
(i) Exhibit “C” was wrongly rejected by the trial court.
(ii) The trial Judge failed to make a finding of fact as to whether or not the road in question was acquired by NNPC? Note: Would it have made any difference to the case if the road was in fact acquired by NNPC (without

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conceding)?
(iii) The trial Judge gave the respondents’ counsel false impression that the evidence of NNPC was not necessary.
5. Were the Justices of the Court of Appeal (Uche-Omo) justified in holding that the award of N200,000.00 damages was manifestly high and arbitrarily awarded N3,000.00 instead?”
The respondent formulated three issues in his brief to wit –
“I. Whether this action is competent and/or property constituted; or, in other words, whether the appellants have the standing to sue in this case.
II. Whether the issue of the competence and proper constitution of the action as set out in issue 1 above, was properly raised and determined for the first time in the Court of Appeal.
III. Whether the appellants are entitled to damages in this case.”
As pointed out by learned Senior Counsel for the respondent, issue Number I of the issues raised by the appellant is incompetent as it is not based on any of the four grounds of appeal filed in this appeal. It is therefore struck out. See Aja Mazi Aja & Ors v. John Okoro and Ors. (1991) 9-10 SCNJ 1; (1991) 7 NWLR (Pt. 203) 260.
As for issues 3 , 4 and 5, these were based on the concurring judgment of Uche Omo, J.C.A., (as he then was) which is not the lead judgment, whatever Uche Omo, J.C.A., said in his concurring judgment, which differs from the lead judgment, with which he agreed, can only be Obiter dicta, and therefore it will be a mere academic exercise to consider them.

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The only remaining pertinent issue in the appeal is issue No.2 which is covered by ground 1 of the grounds of appeal. Under this issue, it was the submission of learned counsel for the appellants that by the averments contained in paragraphs 8, 9, 10,11 and 15 of the Statement of Claim, the  appellants have revealed a common cause of action and that the Court of Appeal was completely  in error to have considered paragraph 15 of the Statement of Claim in isolation of the rest of the pleadings with particular reference to the paragraphs mentioned supra. Learned counsel also submitted that the only cause of action in the case is the damage to the community road in which all the members of Owevwe  community, including the appellants, have a common interest and which damages resulted in economic loss and inconvenience to the said community. Learned counsel further submitted that the case of Oraghade v. Onitiju (1962) WNLR 21 relied upon by the Court of Appeal in its judgment is not apposite. He urged this Court to allow the appeal and restore the judgment of the trial court.
In reply to the submission above, learned Senior Counsel for the respondent submitted (under issue 1 of the respondent’s brief which is in substance the same with issue No.2 of the appellant’s brief), that the action instituted by the appellants was incompetent as they failed to establish the necessary facts to ground a representative action in that there was no sameness of interest and grievance in the case. Learned Senior Counsel referred to paragraphs 4, 6, 11 to 15 of the  Statement of Claim as well as the evidence of PW1

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and the provision of Order 7 rule 9 of the High Court (Civil Procedure) Rules 1988 of the then Bendel State of Nigeria and the cases of Oragbade v. Onitiju (1962) 1 SCNLR 70; (1962) WNLR 21; (1962)1 All NLR (Pt. 1) 32 and Adediran & Anor  v. interlard Transport Limited (1991) 9 NWLR (Pt.214) 155; (1991) 12 SCJN 27 to support his submissions. He therefore urged this Court to dismiss the appeal and affirm the judgment of the Court of Appeal.
It seems clear to me that the appellants filed the action under the provision of Order 7 rule 9 of the High Court (Civil Procedure) Rules, Cap. 65 of the Laws of Bendel State of Nigeria 1976 applicable in Delta State. The rule provides as follows:-
“9. 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 Judge to defend in such cause or matter on behalf or for the benefit of all persons so interested.”
The essential condition of a representative action brought under the provision of the rule (supra) is that the persons that are to be represented must have the same , interest in one cause or matter. Mere identity or similarity of circumstances in a litigation may not necessarily result in the parties thereto having a common interest ‘and a common grievance.
In the leading case of Markt & Co. v. Knight Steamship Company Ltd. (1910) 2 KB 1021 a similar provision to Order 7 rule 9 (Supra). to wit Order XVI rule 9 of the English Rules, came under consideration. The brief facts were as follows:
The plaintiffs shipped goods on a steamship belonging to

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the defendants for conveyance from New York to Japan, and in the course of the voyage, the ship was sunk by a Russian cruiser. Both the ship and cargo were lost. The plaintiffs brought a representative action in which they were described as suing on behalf of themselves and others, owners of cargo lately laden on board the said ship. The writs were endorsed with a claim for “damages for breach of contract and duty in and about the carriage of goods by sea”. It was held
“that, upon the writs as they stood, the plaintiffs and those whom they purported to represent were not “persons having the same in  one cause or matter” within the meaning of Order XVI rule 9 and that the plaintiffs were not entitled to bring representative actions.”
The claims for damages in Markt & Co. Ltd. v. Knight Steamship Company Ltd. (supra) were based on injury resulting from a breach of contract; but what is relevant to the present case is the consideration given to Order XVI rule 9 of the English Rules which is in pari materia with Order 7 rule 9 of the Bendel State High Court (Civil Procedure) Rules.
In Amachree & Ors. v. Newington 14 WACA 97, the facts of which were narrated as follows –
“The nine appellants as co-plaintiffs sued the respondent claiming a single amount for damages for assault and false imprisonment. In the course of the case for the plaintiffs the trial Judge invited Counsel for the plaintiffs to consider whether it was competent for them to bring one action, and Counsel said it was as they were all detained at the same time and in the same places. He did not call all the plaintiffs to give evidence. At the end of the case

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the Judge non-suited the plaintiffs on the ground that it could not be said they had jointly together a ground for instituting a suit for the damage each suffered, and each must sue separately.”
On appeal to the West African Court of Appeal against the trial court’s decision, it was held on page 99 (Per Coussey J.A) that :-
“the cause of action of each plaintiff may be said to arise out of similar transactions, but they are distinct transactions in the sense that there is not joint tort. Order 4 rule 2 permits joinder of plaintiffs in an action but not joinder of causes of action. The alleged damages of each plaintiff is not a common ground of action.”
See also cases of Carter v. Rigby& Co:- (1896) 2- QB 113 and Steam Navigation Co. v. TsuneKijima (1895) AC 661 (PC) which were considered and applied in Amachree v. Newington (supra). The two cases involved claims for damages in  tort, as it is in this case and it was held on the facts, that the plaintiffs in each case could not bring a representative action since the cause of action in respect of each plaintiff was separate and distinct.
In  J.A. Adediran & Ors. (as representative and on behalf of all members of Ire-Akari Housing Estate, Isolo v. lnterland Transport Ltd. (1991) 12 SCJN 27; (1991) 9 ,NWLR (Pt.214) 155 the plaintiffs brought a representative action claiming damages for nuisance being committed by the defendant. They succeeded in the High Court but lost in the Court of Appeal. On further appeal to this court, one of the issues raised was the applicability of the provisions of Order 13 rule 14 of the High Court of Lagos State (Civil Procedure) Rules, 1972

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which is in pari materia with Order 7 rule 9 of the Bendel State High Court (Civil Procedure) Rules, this court held:
“For an action to lie in a representative capacity, there must be-
(i) a common interest;
(ii) a common grievance and
(iii) the relief must be beneficial to all”
There is no doubt in this case that the cause of complaint is common to the, community, but the injury suffered by each member and its extent is different. This means as stated in Adediran & Ors. v. lnterland Transport Ltd. (supra) the wrong is only a common platform on which the individual members of the community can bring an action.
The essential condition for sustaining a representative action is that the persons who are to be represented have the same interest as the plaintiff in one and the same cause or matter. There  must therefore be a common interest alike in the sense that its subject or its relation to that subject must be the same. See Markt & Co Ltd. v. Knight Steamship Co. Ltd (supra), Oraghade v. Onitiju (1962) 1 All NLR 32; and Oganioha & Ors v. Oghene & Ors. (1961) 1 All NLR 59.
The pleadings in this case, particularly paragraphs 8, 9, 10, 11, and 15 and the evidence adduced in support thereof show clearly that the parties have neither a common grievance nor a common interest in the action. The case of each member of the community must depend on its own merit as the causes of action are different. The learned trial Judge was wrong in entertaining the action in a representative capacity and also in awarding a lump sum as damages for reliefs not specifically pleaded and

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proved.
It is a misconception of the facts in this case for learned counsel for the appellants to contend that the only cause of action in the case is the damage to the community road in which all the members of the said community have a common interest, while from the pleading it is shown that some suffered physical injuries, some economic, others inconvenience etc, thus showing no common interest and common grievance. On this issue, I entirely agree with and endorse the submission of learned Senior Counsel for the respondent in his brief that:-
“Indeed, the interests revealed in this case are not only varied, but rather veriegated, ranging from the separate and distinct farming and trading activities of individual members of the Community on the one hand; to physical injuries as well as personal inconvenience alleged to have been suffered by some individual members of the Community, on the other hand.”
On the whole, I find no reason to disagree with the findings and the conclusions of Musdapher J.C.A., in his lead judgment. The appeal has no merit and it fails. It is accordingly dismissed. The judgment of the Court of Appeal is hereby affirmed with N1,000.00 costs to the respondent.