Sanni Kehinde (Mogaji Agunbiade) V Amole Ogunbunmi And Others (1967)

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BRETT, J.S.C.

The plaintiff sued in the High Court of Western Nigeria (Suit No. 1/207/1961) claiming a declaration of title to land and an injunction to restrain trespass. In the writ of summons dated the 3rd August, 1961 he is described as:-

“Sanni Kehinde (Mogaji Agunbiade for himself and on behalf of Agunbiade family).”

He obtained an order of the court authorising him to sue in a representative capacity, although 0.7, r.9 of the High Court (Civil Procedure) Rules which came into operation on the 1st November, 1958, makes this unnecessary: Oragbade v. Chief Onitiju [1962) 1 All N.L.R. 32,35.

Pleadings were ordered and delivered and on the 20th March, 1962, the case was listed for hearing in the High Court before Thomas J. The typed copy of the record of proceedings on that day reads as follows without showing where the submissions of counsel end and the judge’s ruling begins:-

“Idowu for plaintiff. Adisa for the defendants. Adisa refers to Order 26, rule 6(2) also Order 2, rule 2. Once the plaintiff who sues in a representative capacity is not present, he is caught by Order 26, rule 2.

It would be different If any other person has a power of attorney to appear. On the other hand the suit might be adjourned with costs. No averment In the Statement of Claim that plaintiff sues in a representative capacity Idowu :- I am asking the court for leave to add a paragraph (2)(b). Para. 2 will be para 2(a). Para 2b will read as follows:-

“That the plaintiff takes this action and sues in a representative capacity.”

Adisa:- I object to the amendment as it is vague. Idowu:- In view of the order made by this court that plaintiff is representing the family and it is not necessary to state the names of the people that he is representing. Plaintiff has compiled with Order 7, rule 9. I would like to make the following amendment and restate paragraph 2(b) as follows:-

“That the plaintiff takes this action and sues on behalf of himself and the Agunbiade family.”

This action has been taken by several members of the family and the absence of one of them is not fatal to this case. I will grant the amendment. But as counsel for the plaintiff has stated that he has no intention of calling Sanni Kehinde, the Mogaji of the Agunbiade family and as in the circumstances Adisa for the defendant has urged me to strike out the case as provided for by Order 26 (2). I will give a ruling however on the point. Costs in the cause. Adjourned to the 21st.”

On the following day the Judge gave judgment striking out the suit. He began by saying that counsel for the plaintiff had submitted that the plaintiff, suing in a representative capacity, did not have to testify personally and had given no reason why the plaintiff was not giving evidence and had not appeared in court. He then read paragraphs (1) and (2) of 0.26, r.6 of the High Court (Civil Procedure) Rules, which are in these terms:-

“(1)Where a cause on the list has been called, if neither party appears the court shall, unless it sees good reason to the contrary, strike the cause out of the cause list.

(2)If the plaintiff does not appear, the court shall unless it sees good reason to the contrary, strike out the cause (except as to any counter-claim by the defendant) and make such order as to costs in favour of any defendant appearing as seems just: Provided that if the defendant shall admit the cause of action to the full amount claimed, the court may if it thinks fit, give judgment as H the plaintiff had appeared.”

After pointing out that no application had been made for another member of the family to be substituted as plaintiff the judge, went on to say “in my opinion the plaintiff has not appeared.” He then referred to Duke v Henshaw (1940) 6

W.A.C.A. 200 and Chapman v. CYA.O. and Aryee-Hyde (1943) 9 W.A.C.A. 181 and on the strength of these cases held that:-

“The onus is always on whosoever sues in a representative capacity to establish his right to sue in such a capacity. He can only do so by testifying on oath and being cross-examined on the point If so desired. He can only do so by appearing in court to testify.”

He thus apparently without realising that distinct questions were involved, gave two reasons for striking out the suit: first, that the plaintiff had not appeared, and secondly, that the plaintiffs right to sue in a representative capacity could not be proved unless he was called as a witness.

The cases on which the Judge relied are not safe guides to the interpretation of the High Court (Civil Procedure) Rules. Duke v. Henshaw originated in a native court. In the High Court of the Protectorate, to which it was transferred for hearing, the rules of court then required that a plaintiff wishing to sue for the benefit of or on behalf of all parties having the same interest should be expressly authorised to do so and, as we have pointed out, when the present case was instituted this was no longer necessary in the High Court of Western Nigeria. Chapman v. C.FA.O. and Aryee-Hyde was a Gold Coast case and the relevant rule of court is not cited in the judgment of the West African Court of Appeal so that we do not know what its terms were. But even if the two cases were authoritative precedents they were neither construed nor applied correctly. As to their construction, neither goes to the length of saying that a plaintiffs authority to sue in a representative capacity can only be proved by his own evidence. As to their application, a judge is never empowered to strike out a suit in limine merely because he has formed the view that the plaintiff must fail unless a certain witness is called. What this court said in Atugbue v. Chime and Anor F.S.C. 18511962 – 24th May, 1963 – applies a fortiori in the present case.

The cases the Judge mentioned and the conclusions he drew from them are irrelevant to the only ground on which he would have been warranted in striking out the suit at the stage where he did. At that stage the sole question was whether if a plaintiff is not present in person, but has instructed a legal practitioner who Is present in person, the plaintiff has “appeared” within the meaning of 0.26, r.6. We have no doubt that the answer must be Yes. 0.2, r.6, 9 and 12 recognises the right of a plaintiff to sue by a solicitor. 0.26 deals with the trial and If the whole of the Order is read there can be no doubt that the rights it gives to one or other of the parties may be exercised on his behalf by a legal practitioner, although this is no-where expressly stated either in this or any other Order. To give one instance, 0.26, r.14 reads:-

“14.When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon.”

There can be no warrant for holding that in r.6(2) “plaintiff’ means the plaintiff in person if in r.14 “party’ means the party in person or by the legal practitioner representing him.

As a matter of accepted usage, it was pointed out during the hearing of the appeal that a legal practitioner instructed in a case introduces himself to the court of trial by saying “I appear for” one of the parties.

There is the same implication when it is said that a practitioner “represents” one of the parties.

If any doubt could remain there is 0.35, r.10, which reads:-

“10.Where no provision is made by these rules or by any other written laws, the procedure and practice in force for the time being in the High Court of Justice in England shall so far as they can be conveniently applied, be in force in the Court: provided that no practice which is inconsistent with these rules shall be applied.”

It is accepted without question that in a civil suit in the High Court in England appearance by counsel is enough to satisfy 0.35, r.1, to which the local 0.26, r.6 corresponds. There is no rule of law or practice in England requiring a plaintiff to be present in person, indeed, until the enactment of the County Courts Act, 1846, followed, for the superior courts by the Evidence Act, 1851, a party to a civil action, whether as plaintiff or defendant was actually disqualified from giving evidence himself. Sir William Holdsworth, in his History of English Law, praises the accuracy of the picture which Dickens’ novels give of the law in action, and, as we reminded counsel, in ‘The Pickwick Papers,” published 1837, Dickens makes counsel for the plaintiff in Bardel v. Pickwick tell the defendant “If he be in court, as I am Informed he is, that it would have been more decent in him more becoming, in better judgment, and in better taste, if he had stopped away.”

We entertain no doubt that the judge’s decision must be reversed, and when the appeal was heard on the 11th December we said that it was allowed and that the case was remitted to the High Court for trial by another Judge; we dealt with costs at the same time. We have given our reasons at some length not because we find any difficulty in the questions we have had to decide but in the hope of re-moving any misunderstanding on what we regard with respect as an elementary point. The case was not cited in argument before us, but it appears that the same submission was made unsuccessfully before Adefarasin. J., in the High Court of Lagos in British and French Bank ltd. v. Salal EI-Assad (1967) N.M.L.R. 40. We agree with his decision and we hope that legal practitioners

Other Citation: (1967) LCN/1482(SC)