Practice and Procedure- Joinder of Plaintiffs-Supreme Court (Civil Procedure) Rules, Order 4, rule 2-Joinder of causes of action not allowed.

The above rule reads: Where a person has jointly with other persons a ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit."

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 the Judge non­suited 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 had suffered, and each must sue separately. The plaintiffs appealed.

Held: Order 4, rule 2, permits joinder of plaintiffs but not joinder of causes of action. There was no joint tort, for the damage caused to each plaintiff could only be personal to each of them. The suit was wrongly constituted and a non-suit was the proper order.

Cases cited:-

(1) Smurthwaite Y. Hannay, 1894, A.C. 494 (H. of L.).

(2) Hannay 6· CO. Y. Smurthwaite, 1893, 2 Q.lJ. 412.

(3) Carter v. Rigby 0- Co., 1896, 2 Q.B. 113.

(4) P. and O. Steam Navigation Co. v. Tsime Kijima. 1895. A.C. 661 (P.C.).

(5) Stroud v. Lawson, 1898, 2 Q.B. 44, at p. 51.

Appeal from Supreme Court by plaintiffs: No. 3533.

J. l. C. Taylor, with him Dr. Udoma, for Appellants.

De Winton, Crmn1 Counsel, for Respondent.

The following judgment was delivered:

Coussey, J.A. The question is whether, under the Supreme Court (Civil Procedure) Rules of Nigeria, nine plaintiffs can join in one action against a defendant for damages for assault and false imprisonment .•

No particulars are given of the assault alleged which may, however, be the technical assault involved in detention, but the false imprisonment claimed for is that the defendant caused the plaintiffs to be detained or imprisoned at different places from the 11th to 16th August, from the 16th to 23rd August and from the 28th to 30th August, 1950. [pg 97]

The first plaintiff is a principal Chief and the other eight plaintiffs are Chiefs and Elders of the Kalabari Clan, Degema Division, Rivers Province of Nigeria, while the defendant is the District Officer of the Division.

The plaintiffs claimed jointly £20,000 general damages. was alleged or claimed.

By his defence the defendant averred that as the District Officer responsible for law and order in Degema Division, on the 11th August he held a meeting which was attended by the plaintiffs and many others for the purpose of discussing the report of a murderous assault upon many Okrikan fishermen by Kalabaris; that the first, second and eighth plaintiffs as members of the" Kalabari Native Clan Authority are also responsible for law and order within the area of the said Authority; that between the 11th and 16th August, 1950, the plaintiffs attended meetings at Buguma where the crime was under investigation; that on the 16th August, he caused them to be transferred to Kula where a house was reserved for them and where they were fed during the course of the investigation and that on the 27th August, 1950, in consequence of the murder of another Okrikan man, the defendant summoned the plaintiffs to Degema for lawful interrogation. Assault and imprisonment by the defendant were denied. At the hearing before the Supreme Court, Port Harcourt, the first, third and sixth plaintiffs only, gave evidence in support of their claims. The first plaintiff said, that he and the other plaintiffs claimed £20,000 from the defendant. He said that he was paramount head of the Kalabaris, President of the Town Council member of the Divisional Council and that his position in Kalabari is unequalled In cross-examination he said he was claiming £4,000 for himself out of the £20,000.

The plaintiff, Hutton Tom George, said that the first plaintiff claimed £4,001 as head and the other eight plaintiffs claimed £2,000 each out of the £20,000. At the close of the evidence of the third plaintiff on the 1st May, 1951, the tri Judge invited Counsel for the plaintiffs to consider whether it was competent  for all the plaintiffs to bring one action or whether each plaintiff should not have taken a separate action. Dr. Udoma for the plaintiffs submitted that in his vie\' all the plaintiffs could bring one action as they were all detained at the sametime in the same places by the same defendant. In view of this the plaintiff: cannot complain that no opportunity was given for the case of one co-plaintiff to proceed.

When the hearing was resumed on the following day Counsel for the plaintiff: observed that as the other plaintiffs would tell the same story (as the first and third plaintiffs) it would shorten the proceedings if they were not called. H 'would therefore, he said, call one more plaintiff, namely the sixth plaintiff an, the others could be called for cross-examination if the defendant's Counsel desired. In his evidence the sixth plaintiff did not particularise his claim [, damages nor that of the other plaintiffs.

The other plaintiffs did not go into the witness box for cross-examination as had been suggested.

The defence was then entered upon and the trial concluded.

After reviewing the evidence the learned trial Judge held that where sever; plaintiffs claim damages for a false imprisonment alleged, each must sue separately for damages. He held that Order 4, rule 2, of the Rules of the Supreme Court was not applicable because it could not be said that all the plaintiffs ha, jointly together a ground for instituting a suit for the damage each had suffered on this and other subsidiary grounds which need not, on this appeal, be considered, the  trial Judge held that the Writ was bad and he non-suited t plaintiffs.

The appeal has been argued mainly as to this part of the judgment for if is upheld the other grounds of appeal, if allowed, would! not assist the appellant [pg 98]

In support of the contention that this ruling is wrong Counsel for the appellants

has cited several cases based on the English Order 16, rule 1 after the amendment of that rule following the House of. Lords judgment in Smurthwaite v. Hannay (1), but he has not referred us to any case on the practice under the Nigerian Order 4, rule 2.

Apparently there is no decided case. The Nigerian Rule is as follows:-

•• 2. Where a person has jointly with other persons a ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit."

It is only necessary to set out the English Rule prior to October 26th, 1896, to see that the Nigerian Rule is so clear as not to permit even the conflict in judicial opinion to assist the appellants that existed at the time the English rule was considered in the High Court in Hannay & Co. v. Smurthwaite (2). The English rule was:-

•• Order 16 (1). All persons may be joined in one action as plaintiffs, in whom any right to relief is alleged to exist whether jointly, severally, or in the alternative and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment."

The House of Lords held in Smurthwaite and ors. v. Hannay (1), that the above rule dealt merely with the parties to an action and had no reference to the joinder of several causes of action and that the several plaintiffs who claimed to have shipped cargo in a general ship under similar bills of lading could not join in one action because each of them had a distinct and separate cause of action.

Carter v. Rigby &> Co. (3), followed. In that case a number of miners had been drowned through the flooding of a mine, and the personal representatives of the deceased miners joined in one action against the proprietors of the mine, claiming that the mine had been flooded through negligence for which they were respon­sible. It was held that the plaintiffs could not join in one action under the rule.

In the case of P. & O. Steam Navigation Co. v. Tsune Kijima (4), which was an appeal to the Privy Council from the Supreme Court for China and Japan, 62 different persons or groups of persons joined as co-plaintiffs to claim damages as due to each plaintiff or group of plaintiffs for injuries resulting from a maritime collision alleged to have been caused by the negligence of the defendant. As in this case where there is no power to employ the existing English rule, the plaintiffs were compelled to rely on the rules of the Courts of China and Japan at the time and there they were met with the difficulty that confronts the present appellants, that nothing was to be found in those rules to warrant the joinder in one suit of different and distinct causes of action.

It is unnecessary to set out here the English Order 16, rule 1 as it was amended with reference to the difficulty which arose in such cases as Smurthwaite v. Hannay (1) and Carter v. Rigby & Co. (3). It will be found in the Annual Practice. As to the amendment it is sufficient to say in the words of Chitty, L.J., in Stroud v. Lawson (5), .. that it was not thereby intended to allow any number of different plaintiffs to join in one action any number of separate and different causes of action, but that it was intended merely to effect a modification of the old rule by which a limited liberty of joining plaintiffs with separate causes of action should be conferred".

In the case before us the cause of action of each plaintiff may be sail'1 to arise out of similar transactions, but they are distinct transactions in the sense that there is no joint tort. Order 4, rule 2 permits joinder of plaintiffs in an action but not joinder of causes of action. The alleged damage of each plaintiff is not a common ground of action. [pg 99]