Alhaji Ade Thanni & Ors. V. Samuel Gbadebo Adegboyega & Ors. (1971)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

In Suit 1K/166/64 in the Ikeja High Court the plaintiffs’ claimed in their writ against 4 defendants:

“(A) 5,000(pounds) general damages for trespass committed and is still being committed by the defendants by themselves their servants/or workmen on the plaintiffs’ land situate, lying and being at Ajegunle Ojo Road, Amuwo, on the mainland of Lagos.

(B) An injunction to restrain the defendants their servants and workmen from continuing the said trespass.”

After the Statement of Claim was filed the defendants brought an application asking inter alia:

“For leave to defend this action as representatives of the Kuje Family of Amuwo (other than the members of the Imore Branch of Kuje Family).”

In support of that motion one Saula Mofiu filed an affidavit which said as to this:

“1. That I am one of the Principal Members of the Kuje Family of Amuwo.

2. That on Sunday the 9th day of January, 1966, a meeting of the said family was held at which over thirty members of our family was present.
3. That at the said meeting, this action which was instituted against four members of our family in their personal capacity was fully discussed.
4. That the family decided that the action should be defended by the family as a whole as any rights exercised on the said family land by the four defendants were exercised as members of our family and with the consent of the family
5. That the four defendants in this suit were duly appointed to defend the suit for themselves and on behalf of the Kuje Family of Amuwo.”

And on the 4th of April, 1967, Odumosu Ag. J., granted leave in the following terms:

“I hereby grant leave to the defendants to defend the action as representatives of the Kuje family of Amuwo, and to file and serve a Statement of Defence in that capacity.”

The defendants then filed and amended Statement of Defence in which paragraph 2 read:

”The defendants aver that they are representatives of the Kuje family of Amuwo and are defending this action in a representative capacity.”

5 The action came on for hearing before Odesanya, J. and evidence was called on both sides and counsel were making their final addresses when the record reads for the 18th of March, 1968: “Giwa for plaintiffs. 1st and 4th plaintiffs in court. Ogunsanya for defendants who are all in court. Terms of settlement announced by counsel. The terms are that the Kuye Family of Amuwo who are represented by the defendants shall ratify forthwith the sale of the property in dispute in favour of the plaintiffs.

2. No member of Kuje Family shall henceforth interfere with the rights of the plaintiffs on the land in dispute.
3. No order as to costs.

Judgment consent is hereby given according to the Terms of Settlement.

The exhibits to be returned to the party who tendered them.”

As a result thereof an order was drawn up in the following terms:

“UPON THE PLAINTIFFS’ CLAIM against the defendants to wit:

(a) 5,000(pounds) general damages for trespass committed and is still being committed by the defendants by themselves their servants/or workmen on the plaintiffs’ land situate, lying and being at Ajegunle, Ojo Road, Amuwo, on the mainland of Lagos.

(b) An injunction to restrain the defendants their servants and workmen from continuing the said trespass.

COMING UP FOR HEARING in the presence of Mr.Giwa counsel for the plaintiffs and Mr. Ogunsanya counsel for the defendants:

AND AFTER HEARING Mr. Sayo Ogunsanya’s announcement that the parties have settled the suit out of court in the following terms:

1. That the Kuje family of Amuwo who are represented by the defendants shall ratify forthwith the sale of the property in dispute in favour of the plaintiffs.
2. No member of the Kuje Family shall henceforth interfere with the rights of the plaintiffs on the land in dispute.
3. No order as to costs.

The Court ordered as follows:

“Judgment by consent is hereby given according to the terms of settlement.

The exhibits to be returned to the party who tendered them.”

Subsequently the present appellants brought an application to this court for leave to appeal against that judgment as being persons having an interest within section 117(6) (a) of the Constitution of the Federation, and on the 23rd day of May, 1969 we gave the leave sought stating that:

“As we see it, what we have to do at this stage is to decide whether the applicants or either of them are prima facie persons with an interest. If we grant leave, it will therefore determine no more that that as to their status and the issues of the actual appeal remain to be determined unfettered by the preliminary prima facie finding.”

Later the present appellants brought a further application to this Court for leave to adduce further evidence and on the 1st of July, 1970 we refused that application emphasising that all that the appellants had done on their motion in 1969 was to establish:

”prima facie for the purpose of the application that they were members of the Kuje Family and were persons with an interest in the matter within the meaning of section 117(6)(a) of the Constitution and they had not been consulted.”

We further in our ruling of the 1st of July, 1970 agreed with the submission of counsel for the respondent that:

”This was not the right way to determine whether the appellants were members of the Kuje Family as that should be done by way of a separate action for a declaration.”

And concluded our ruling with the following words:

“In our view if we are to hear the substantive appeal now the appellant must rely on the record for their submissions and it is not appropriate to decide such an important and fundamental matter as to who are members of a family by further affidavit evidence on a motion. In the circumstances we must refuse the application to call further evidence.”

The appellants filed grounds of appeal which read:

“(1)The Court below erred in law in making the order appealed from when the members of the Kuje Family were not parties to the action before him.

(2) The Court below erred in law in making the order aforesaid when neither of the two counsel appearing before him had the authority to speak for or on behalf of all sections of the Kuje Family.

(3) The Court below erred in law and on the facts in failing to observe that the defendants have no authority to enter into any compromise or settlement of the matter before it when (a) Wahabi Babalola (2nd defendant) and (b) and the other members of the Kuje Family purportedly represented by the defendants do not expressly authorize the 1st, 3rd and 4th defendants to do so.

(4) The decision appealed from should be set aside because the defendants/respondents do not represent all the branches of the Kuje Family of Amuwo.

(5) The decision is wrong in law because defendants authorised to defend an action in a representative capacity can only submit to judgment and have no authority to enter into a compromise or settlement.”

and Chief Williams argued together grounds 1 and 5, and then grounds 2, 3 and 6 together.

Before turning to the arguments on the grounds of appeal, however, it is convenient to deal with a point raised by Mr. Ogunsanya for the 1st, 3rd and 4th defendants/respondents. He submitted that Chief Williams did not establish from the record that the appellants were in fact members of the Kuje Family and thus had not established any locus standi at all. Chief Williams however submitted that having been granted leave the appellants did not have to do so as Mr. Ogunsanya submitted a second time. The position as we see it is that as a result of the evidence adduced in support of the application in 1969 before us for leave to appeal as “parties interested”, we were satisfied that for the purpose of the application the appellants had established that they were prima facie members of the Kuje Family and had not been consulted. We decided no more than that and we explained that the proper way to determine whether the appellants were in fact members of the Kuje Family was by bringing a separate action in regard to it. However, we granted leave for the appellants to appeal as persons having an interest and having done so by virtue of section 117(6) (a) of the Constitution of the Federation they were entitled to argue the appeal. If however for the purpose of arguing their grounds of appeal they wished to establish that they were members of the Kuje Family then they could not rely on the determination of this Court made on the application for leave to appeal but must do so by showing from the record itself that they had that status. Chief Williams, however, did not in the way he argued the appeal find it necessary to rely on evidence in the record that the appellants were in fact members of the Kuje Family, and having been granted leave, in our view, he was entitled to argue as he did leaving that issue remaining finally undetermined, the appellants’ status being solely that they had established for the purpose of obtaining leave a prima facie case of being interested parties.

On grounds 1 and 5 Chief Williams submitted for the appellants:

1. That the representation order was wrongly granted by the learned trial Judge as all members of the Kuje Family were not parties to the application as the Imore Branch was excluded;
2. That the court had no jurisdiction to grant the application as the defendants were sued individually and were not numerous persons with the same interest under Order 7 Rule 9 of the High Court (Civil Procedure) Rules of the Western State; and
3. That there was no jurisdiction to make a representation order as the action was in tort for trespass.

So far as his first point here is concerned it is true that the application for leave to defend was as representatives of the Kuje Family of Amuwo other than the members of the Imore Branch of Kuje Family but the affidavit in support which we have quoted earlier showed clearly that it was a representation on behalf of the whole Kuje Family that was sought and this was what the learned trial Judge in fact granted. If either the plaintiffs or the defendants had at that stage been dissatisfied with that ruling they could have sought leave to appeal but far from doing so they then pleaded and fought the action on that basis and we do not think that the contention of the present appellants can in those circumstances be sustained.

So far as the second point is concerned it is necessary to look at the words of Order 7 Rule 9 of the High Court (Civil Procedure) Rules of the Western State which reads:

“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 authorized 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 basis of the defence was that any action the 4 defendants personally may have taken on the land was done in their capacity as members of the Kuje Family as the land was Kuje Family land and in our view the numerous persons here with an interest in the same cause were the Kuje Family so that it was perfectly proper for the learned trial Judge under Order 7 Rule 9 to allow them to defend the action through their representatives the 4 existing defendants who in any case remained liable themselves albeit that they were representing the wider interest of the family as a whole.

Chief Williams’ third point is that the action as framed by the plaintiffs was a personal one in tort for the trespass against the 4 named defendants and that therefore it was not possible to make a representation order as the family were not concerned and he relied on the English Supreme Court Practice 1970 Volume 1 at page 188 where it says dealing with Order 15 rule 12 “In its application to cases of tort the Rule only applies where it is clear that every person to be represented against whom the judgment may be given is under the same liability and has the same defences and no others in respect of the claim for which the action is brought. The Rule, therefore, does not apply to an action for conspiracy (Hardie & Lane Ltd v. Chiltern [1928] 1 K.B. 663, C.A. nor to an action for libel Mercantile Marine Service Association v. Toms [1916] 2 K.B. 243, see also per Lord Parker in London Association for Protection of Trade and Another v. Greenlands Ltd [1916] A.C. 15 at p. 38 nor to an action for trespass Winder v. Ward unreported decided y the C.A. February, 26 1957). On the other hand, the Rule may apply in an action for negligence (Campbell v. Thompson and Another [1953] 1 Q.B. 445).”

He further referred specifically to the case mentioned there of Mercantile Marine Services Association v. Toms [1916] K.B. 243 as showing generally that representation could not be made in tort. He also pointed out that the West African Court of Apeal expressly left the issue open in Adegbite v. LawaI (1948) a 12 W.A.C.A. 398 at 399. Finally Chief Williams submitted that if the leave was in fact wrongly given then Adegbite v. Lawal (supra) and Hardie v. Chiltern (1928) 1 K.B. 663 show that the persons represented were not before the court and the order was invalid and a nullity.

We are not called upon here to determine generally whether a representation order can be made in an action for tort but solely whether it can be done in Nigeria in an action in tort for trespass on land. The only authority referred to us against so allowing it is the unreported case referred to us in the passage from the Annual Practice 1970 that we have quoted of Winder v. Ward and we have not had the advantage of reading that report and seeing the reasons for the decision. In any case, however, English Law does not have the concept of family land that exists so widely in Nigeria and we are of the view that an action can be defended by representatives of family on behalf of the family in an action for trespass for what is in effect trespass on the land by some of the members of the family acting under the family rights. We draw support for our view from Obasi v. Oti (1966). 1 All N.L.A. 282 where at page 286 we said:

“Regarding damages for trespass it was submitted that since the case of the plaintiffs was that two members of the defendant’s community, namely, OKORIE OCHO and EKE OKEREKE, built houses outside the settlement granted to the defendants’ people these two men only, and not the community should be liable to trespass.

The answer to this is that these two men were by their acts asserting the title of the community and the community fully supported them, and in, effect, adopted their acts. It seems to us that this is a case in which the trespass can be said to be the trespass of the community.”

It follows that in our view the leave was properly given here so no question of invalidity or nullity of the order arises.

Chief Williams then argued together grounds of appeal 2, 3 and 5 which we have already set out. His submission here was alternative to that contained earlier in grounds of appeal 1 and 5 as it of necessity presupposes to validity of the leave to defend as representatives which Chief Williams had contended was a nullity but which we have indicated we think was in order. It was his first submission here that authority to defend an action does not include the power to compromise that action and he relied on the Statement in Halsbury’s Laws of England 3rd Edition Volume 22 page 766 that stated:

“Persons authorised by the court to defend an action on behalf of others having the same interest cannot consent to judgment against them.”

The authority relied on for that proposition was Rees v. Richmond (1890) 62 L.T. 427 where defendants had been authorised by the court to defend the action on behalf of the numerous persons having the same interest with themselves and their counsel consented to judgment on the ground that there was no defence but Kekewich, J. held in respect of a rule of court similar to Order 7 Rule 9 of the Western State High Court (Civil Procedure) Rules to which we have already referred:

“That the order did not authorise such a consent, and that, as regards the persons represented by some of the defendants, the judgment must be drawn in the form of a submission on their behalf to judgment.”

It is to be noted that no reasons were given by Kekewich, J. for his decision but it was just categorically stated to be the position. In our view when persons are given leave to defend as representatives it is because the people represented think they are the most suitable persons to conduct the litigation on their behalf. In so doing they can in conjunction with counsel decide not to offer evidence or otherwise to conduct the case and in our view they can direct counsel to submit to judgment which would of course fully bind those represented, and if they think it is in the interest of those represented they can settle on better terms than they would get if they submitted to judgment. Chief Williams himself in his argument before us got into the illogical position that he submitted that whilst counsel could himself if he thought that there was no legal defence submit to judgment on behalf of those for whom he appeared, yet the representatives could not so instruct him. We see no merit in such distinctions and we are not prepared to follow the decision of Kekewich, J. in Rees v. Richmond (supra), which was given as we have indicated without reasons or authority, as we think the natural result flowing from leave to defend is that it gives the representatives the right to do anything in the conduct and the defence of the case that is in the interest of those represented, including submitting to judgment or settling if they think that is the best alternative. It is for those represented to ensure in the first place that those they choose are likely to act in the best interests of those they represent and of course, it is likely that they will in practice continue to consult those they represent during the time the action is being conducted. We accordingly reject this submission.

Chief Williams other point on these grounds of appeal was that according to the record, which we have quoted, and the order drawn up, which we have also quoted, there was no evidence that the court was asked to make the agreed terms of settlement a matter of a court order and that there were 5 different ways of effecting a compromise settlement as Slade, J. set out in Green v. Rosen (1955) 1 All E.R. 795 at pages 799 to 801. One of the ways was to make the terms a matter of agreement only and not to ask the court to make an order incorporating them and if an order is not asked for, a court has no jurisdiction to make one and he relied on McCallum v. Country Residences Ltd. (1965) 2 All E.R. 264 at page 265. Further he submitted that a court order should expressly state that it is made by request and he relied on Chandless – Chandless v. Nicholson (1942) 2 K.B. 321 at 324. So far as the last case is concerned we note that Lord Greene M.R., at page 324 said:

“The mere fact that one side submits to an order does not make that order a consent order within the technical meaning of that expression, and I am not the least bit satisfied, having regard to the conflicting statements which we have before us as to how this order came to be drawn up, that it was a consent order in the technical sense.”

In other words the court had before it “conflicting statements” as to what took place. Here no objection has been taken by either of the parties in the action to the court order to the effect that it does not carry out what was agreed and asked for, yet, Chief Williams seeks on behalf of outside parties who were not present to attack it on its face. We would be very reluctant to accede to such a request and whilst we of course accept on the authorities that a court order can only be made by the court if it is so requested we see nothing from the record to doubt that it was so requested. The record it is true is silent but neither party to the court order is attacking it, and we thought it only fair in the circumstances to allow each of the counsel who were in fact parties to the application for settlement in the High Court to inform us from the Bar of the position, and both Mr. Giwa and Mr. Ogunsanya confirmed that the High Court was in fact requested and did what it was asked in making the consent order though the record is silent in regard to it. We are not prepared to hold here accordingly that the court order was made otherwise than at the request of the parties.

We would only add that Mr. Giwa for the plaintiffs/respondents sought to take the point that anyway the appellants were not entitled to attack the court order by consent on appeal as this could only be done by bringing a fresh action and he relied on the case of In re Affairs of Elstein (1945) 1 All E.R. 272 for his submission. We think that Mr. Giwa should have made this submission when leave was sought to appeal and the ground of appeal which is now being argued was first raised and it was too late for him to take the point before us. We have accordingly dealt with the grounds of appeal on their merits without determining this submission, though it is to be noted that we have in fact dealt with the proper procedure for setting aside a consent order in Babajide v. Aisa (1966) 1 All N.L.A. 254.

The appeal accordingly fails and is dismissed with 41 guineas costs to the plaintiffs/respondents, and 41 guineas costs to the 1st, 3rd and 4th defendants/respondents. As Mr. Adewale for the 2nd defendant/respondent, albeit apparently on instructions from his client, took a stand in support of the appellant’s case despite filing no appeal notice, we think it right to make no order as to costs in favour of the 2nd defendant/respondent.

Appeal dismissed.

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Other Citation: (1971) LCN/1223(SC)