Alhaji Chief Yekini Otapo V. Chief R.o. Sunmonu & Ors. (1987)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal came up for hearing on the 17th day of February, 1987. After reading the record of appeal, the judgment of the Court of Appeal and the High Court, the briefs of arguments filed by the parties to this appeal and hearing the submissions of counsel for the parties in oral argument, I found substantial merit in the appeal and allowed it.

I set aside the decision of the Court of Appeal and remitted the case to the Court of Appeal for the appeal to it to be heard de novo with liberty to the appellant represented by the plaintiff/respondent herein to be heard in the appeal. I then indicated that my reasons for the judgment would be delivered today. I now proceed to give and deliver those reasons.

The main complaint of the appellant was that the Court of Appeal denied the represented parties a hearing in the appeal after Alhaji Chief Yekini Otapo who represented the appellant and others had declined to contest the appeal filed by the defendants against the decision of the High Court. The appeal therefore succeeded on the sole issue of fair hearing argued before this Court.

The matter in respect of which Alhaji Yekini Otapo filed an action in the High Court of Lagos State, Lagos Judicial Division, is a chieftaincy matter. More particularly, the endorsements on the writ of summons read:

“The plaintiff’s claim is for:

1. A declaration that the declaration made under section 4(3) of the Chiefs Law of the Customary Law regulating the selection to the Olu of Agege Chieftaincy made by the Chieftaincy Committee of Agege District Council and signed by the Chairman and the Secretary of the Committee on 10th September, 1957 and approved by the Minister of Local Government on 12th day of February, 1987 and registered by the Permanent Secretary on 12th February, 1958 be declared null and void and of no effect;
2. A declaration that the defendants have no right to write and act upon the two letters dated 30th day of December, 1981 reference No. ALG/I8/84 and ALG/18/85 written by Mr. M. A. Fatoku, the Council Manager;
3. Injunction restraining the defendants, their servants and or agents from appointing the new Olu of Agege until a new declaration is made;
4. An order that a panel be set up to make a new declaration.

In the amended statement of claim filed on the 4th day of June, 1982 at pages 159 to 166 of the record, the claim set out in paragraph 41 read as follows:

“wherefore the plaintiffs claim as follows:

1. A declaration that the process of nomination, selection, appointment and approval of Chief Jinadu Onilude in January, 1982 is null and void and of no effect whatsoever in that

(a) The selection was contrary to the Chieftaincy Declaration in respect of the Olu of Agege Chieftaincy approved and registered on the 12th February. 1958;

(b) the process of Nomination, selection, appointment and approval was consequent upon an illegal announcement made by the 7th defendant, the Council Manager of an incompetent Council Agege Local Government which does not exist in law.

2. Alternatively, A decision setting aside as null and void and of no effect whatsoever, the declaration made under section 4(3) of the Chiefs Law of the Customary Law regulating the selection to the Olu of Agege Chieftaincy made by the Chieftaincy Committee of the Agege District Council and signed by the Chairman and the Secretary of the Committee on the 10th day of September, 1957 and approved by the Ministry of Local Government on the 12th day of February, 1958 and registered by the Permanent Secretary on 12th February, 1958 in that

(a) At all material times, the Registered Declaration was and is still against the popular age-long tradition of Agege people;

(b) The said declaration is not a correct statement or restatement of the customary law relating to the Olu of Agege chieftaincy.

3. A declaration that the appointment of the 1st, 4th, 5th and 6th defendants contained in Lagos State Legal Notice No. 19 of 1961 is null and void and of no effect in that it is contrary to section 19 of the Lagos State Obas and Chiefs Law 1981.
4. An injunction restraining the Governor of Lagos State, the Commissioner for Local Government and Community Development and other officers, servants and functionaries of Lagos State Government or any other public officers whatsoever from installing the 2nd defendant (Chief Jinadu Onilude) or performing any chieftaincy ceremony on the 2nd defendant as the Olu of Agege in pursuance of the approval by the 1Oth defendant of the 2nd defendant as the Olu of Agege.”

The plaintiff did not at first plead that he was representing the members of Isale-Oja and Gbogunleri section of Ogunji Adebari Otaru and Asunmoge Olu Chieftaincy families of Agege. Instead, in paragraph 1 of the statement of claim, he pleaded that:

“The plaintiffs are members of the ruling houses of Olu of Agege Chieftaincy family.”

This was amended in the amended statement of claim dated 20/10/82 to read:

“The plaintiff sues on his own behalf and in a representative capacity.

The claim was also amended to read:

“Whereupon the plaintiff’s claim is as follows:

1. A declaration that the nomination, selection, appointment and approval of Chief Jinadu Onilude (2nd defendant) are null and void and of no effect whatsoever:
2. A declaration that the appointment of the 1st, 4th, 5th and 6th defendants as kingmakers by the 8th defendant as contained in Lagos State Legal Notice No. 39 of 1981 is null and void and of no effect whatsoever;
3. An injunction restraining the Governor of Lagos State, the Commissioner for Local Government and Community Development and other officers, servants, and functionaries of Lagos State Government or any other public officer whatsoever from installing the 2nd defendant (Chief Jinadu Onilude) or performing any chieftaincy ceremony on the 2nd defendant as the Olu of Agege in pursuance of the approval by the 10th defendant of the 2nd defendant as the Olu of Agege.”

Pleadings were fully filed and delivered and the matter at the close of the pleadings came up before Jinadu, J. for hearing. At the conclusion of the hearing of evidence and addresses of counsel, he delivered a considered judgment and granted all the declarations and order of injunction claimed or prayed for. In the course of his judgment, the learned trial judge observed at page 352 of the record of proceedings and judgment:

“As the plaintiff has instituted this action for himself and on behalf of the Isale Oja and Gbogunleri section of Ogunji Adebari Otapo and Asunmoge Olu chieftaincy families, I think that this action is for a great many individuals as well as for himself.”

This also emphasizes the point the learned trial judge made in his Ruling at page 210 in an application for amendment of the statement of claim to reflect among others, his representative capacity. There he said:

“In the first they are all “plaintiffs” without authorising any one number to prosecute the action, whereas in the other someone among the “plaintiffs” in the earlier pleadings claims to have the authority of his other “colleagues” to prosecute the action not only for himself but also on behalf of others and since there is no evidence contradicting that authority, I hold that the applicant now prosecute the action not only for himself, which he is entitled to do, but, also with the authority of others, This he is, in my opinion, competent to do and so I think that counsel’s objection is misconceived and therefore overruled, ” (Italics mine)

Concluding the judgment, the learned trial judge, Jinadu, J. said:

“Accordingly, I hereby declare:

(1) that the nomination, selection, appointment and approval of Chief Jinadu Onilude (2nd defendant) as Olu of Agege are null and void and of no effect;

(2) That the appointment of 1st, 4th and 6th defendants as kingmakers by the 8th defendant as contained in the Lagos State Legal Notice No. 39 of 1981 and contained in the Lagos State of Nigeria Official Gazette No. 67 of 31st December,1981 is null and void and of no effect whatsoever:

(3) The Governor of Lagos State, 10th Defendant in this suit, the Commissioner for Local Government and Community Development, 8th defendant in this suit, and other officers, servants and functionaries of the Lagos State Government or any other public officer whatsoever are hereby restrained from installing the 2nd defendant (Chief Jinadu Onilude) or performing any chieftaincy ceremony on the 2nd defendant as the Olu of Agege in pursuance of the approval by the 10th defendant of the 2nd defendant as the Olu of Agege.

Aggrieved by the decision, all the 10 defendants appealed to the Court of Appeal on many grounds. The notice of appeal filed by the 7th to the 10th defendants contain 3 grounds of appeal and the notice of appeal filed by the 1st to the 6th defendants also contained 5 grounds. The 7th to 10th defendants applied for and obtained leave to file and argue 4 additional grounds of appeal. The decision of the Court of Appeal was delivered on the 29th July, 1983.

Before the appeal was heard, the plaintiff/respondent decided not to defend the judgment he obtained in the High Court. This is brought out by the document filed in court which reads:

“The plaintiff/respondent considering the representation made to him by Chiefs and other respondent community leaders in Agege, does not want to continue with any appeal again on this matter and will be grateful if the candidature of Jinadu Onilude as the Olu elect is approved. I have instructed my solicitor not to proceed with the appeal.

A copy of my letter of 1st April, 1985 is herewith attached.”

A copy of this document was endorsed for service on 1st to 6th defendants/appellants.

The letter dated 1st April, 1985 was addressed by Olufemi Ajayi on the instruction of the respondent, Alhaji Yekini Otapo to His Excellency the Military Governor. The 1st five paragraphs of the letter make interesting reading. The paragraphs read:

“Re Opposition to the candidature of Chief Jinadu Onilude as the Olu Elect of Agege

Suit LD/18/82

Chief Alhaji Yekini Otapo v. Chief R.O. Sunmonu and Others.

We are the solicitors to Chief Alhaji Yekini Otapo plaintiff in suit LD/18/82 and the only person opposing the candidature of Chief Jinadu Onilude as the Olu elect of Agege.

We are instructed by our client, Chief Yekini Otapo, to inform Your Excellency that he is withdrawing his opposition to the candidature of Chief Jinadu Onilude as the Olu-elect of Agege and that it may please Your Excellency to proceed with the installation of Chief Jinadu Onilude as the Olu of Agege.

Our client was the plaintiff in suit LD/18/82 i.e. Chief Alhaji Yekini Otapo v. Chief R.O. Sunmonu and Others in which our client Chief Alhaji Yekini Otapo won before Mr. Justice Y.A.O. Jinadu at High Court 9 Lagos.

Chief R. O. Sunmonu then appealed against the judgment. Our client then instructed his solicitors to proceed with the appeal. Our client is no more interested in the appeal and has instructed the solicitors not to bother with the appeal again as he is no more interested to become the Olu of Agege.

We are instructed by our client, Chief Yekini Otapo to inform Your Excellency about his withdrawal in order that there will be no delay again in installing Chief Jinadu Onilude as the Olu of Agege.”

What is interesting about this letter is the brazen falsehood it contains. Paragraph 1 is incorrect and the Alhaji Chief Yekini Otapo knows that he was not alone in opposing the candidature of Chief Jinadu Onilude as the Olu elect of Agege. He was not even chosen as a rival candidate. The evidence on record shows that Prince Muraino Adebari, the present appellant, was chosen as a rival candidate. He knew that he filed and prosecuted the action in the High Court in a representative capacity, i.e. as a representative of the members of Isale-Oja and Gbogunleri quarters or section of Ogunji Adebari Otapo and Asunmoge Olu chieftaincy families of Agege. The title to the case and paragraph 1 of the amended statement of claim is quite explicit about this fact. Paragraph 1 reads:

“The plaintiff sues on his own behalf and in a representative capacity.” Sec p. 219;

Paragraph 34 reads in part:

“At the said meeting of 1st January, 1982, Muraino O. Adebari was selected as a candidate to be appointed and approved as the Olu of Agege. The minutes of the said meeting will be relied on at the trial of the case.”

When judgment was pronounced in his favour in the High Court, it was pronounced for him as representative plaintiff. He cannot therefore deprive members of the Isale Oja and Gbogunleri quarters or section of Ogunji Adebari Otapo and Asunmage Olu Chieftaincy families of Agege of the benefit of the judgment. Paragraph 36 of the amended statement of claim emphasized the candidature of the present appellant when the plaintiff pleaded:

“By a letter dated 1st January, 1982, the head of Isale Oja and Gboguoleri quarters forwarded the selection of Mr. Murainoh O. Adebari aforesaid as the next Olu of Agege to the kingmakers for ratification.-

At the Court of Appeal, following the filing of the documents referred to above and service of them on the defendants/appellants the 7th to 10th defendants/appellants filed an application by notice of motion in the Court of Appeal seeking an order for a departure from the Rules and leave

(a) to argue the appeal without filing briefs;

(b) allowing the appeal to be argued on the 21st October, 1985.

The application although dated 14th day of October, 1985 was filed on the 16th of October, 1985. The application was supported by affidavit paragraphs 5, 6 and 7 of which read:

“(5) That the respondent filed in court some papers dated 3rd October in which he stated that he was no more interested in the appeal and that the candidature of the 1st defendant be approved as the Olu elect of Agege.

(6) That the said papers are attached and marked Exhibit ‘A’ and ‘A1’.

(7) That since the judgment of the lower court restraining the appellants/applicants from installing Jinadu Onilude as the Olu of Agege, the people of Agege have been without an Oba.”

Exhibit “A1” is not dated 3rd October but 1st April, 1985.

When the application and the appeal came before the Court of Appeal on the 21st day of October, 1985, the court heard and granted the application. It also heard and allowed the appeal. The record of proceedings in the application is short and reads:

“J. A. Oduneye with Mrs Gbadebo & Femi Ajayi for appellant

D. O. Ogunade with Miss Martins for 1st-6th Respondents

O. A. R. Ogunde with C. C. Ibe for Plaintiff/Respondent

Mr. Otapo in person, says he is no longer interested in the appeal as a person directly affected.

Mr. Oduneye says an Olu of Agege has been appointed by the Government;

Ogunde says that the person appointed the Olu is not his client and is not present in court: Oduneye moves applications for additional grounds and departure from the rules to argue orally, Applications granted. Refers to Exhibit ‘A’ and in motion dated 3/9/85 filed on 3/9/85.”

Mr, Oduneye, learned counsel for 7th to 10th defendants/appellants proceeded to argue grounds I and 2 of his grounds of appeal. These two grounds read:

“(1) The learned judge erred in law when he held that the plaintiff is competent to sue in a representative capacity without first obtaining the order of court

Particulars

The writ of summons shows that the plaintiff is suing on behalf of himself and members of Isale Oja and Gbogunleri section of Ogunji Adebari Otapo and Asunmoge Olu Chieftaincy Families of Agege. The plaintiff failed to obtain order of court to sue as such under Order 13 Rule 14 of the High Court of Lagos civil Procedure Rules.

(2) The plaintiff sued on behalf of a non-existing group of people and as such has no locus standi to bring the action and that he was not authorised by the entire Isale Oja Gbogunleri quarter to bring the action.

Particulars

(a) The plaintiff in his writ of summons which was never amended sued as Alhaji Chief Yekini Otapo (on behalf of himself and members of (sale Oja and Gbogunleri section of Ogunji Adebari Otapo and Asunmoge Olu chieftaincy families of Agege)

Throughout the evidence led in this case, there was no mention of Ogunji Adebari Otapo, and Asunmoge Olu Chieftaincy families of Agege. In fact, Olu of Agege chieftaincy is not a ruling house chieftaincy family but a chieftaincy by rotation amongst the four wards in Agege.

(b) By the plaintiff suing as such, i.e. section of Ogunji Adebari Otapo and Asunmoge Olu chieftaincy families of Agege, all other members of Isale Oja Gbogunleri quarters who do not belong to the above section do not have any knowledge of this case and the plaintiff could not have been suing on their behalf.”

Those were the two grounds argued briefly before the Court by Oduneye. Mr. Ogunade for 1st – 6th defendants/respondents agreed with his submissions.

Without hearing from the represented parties, the Court of Appeal (Ademola, Kutigi and Kolawole, JJCA.) proceeded to judgment and they delivered a one page judgment allowing the appeal, setting aside the judgment of the High Court and making an order dismissing the entire suit. See p.399.

In his brief judgment, Ademola JCA, (with whom Kutigi and Kolawole, JJCA. concurred) said:

“This appeal would be allowed on the two grounds argued by learned counsel. The minor ground being that the respondent who did flat oppose this appeal, did not obtain leave of the court to represent members of the Isale Oja and Gbogunleri section of Ogunji Adebari Otapo and Asunmoge Olu chieftaincy families. This point was made in the lower court but the learned judge replied by a wholly unacceptable interpretation of Order 13 Rule 14 of the Lagos State High Court Rules in that notwithstanding that no order has been asked for, the court can make a person represent other peoples. This is not good law and ought to be rejected and it is so rejected.”

It is settled law that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action. The mere fact that the court holds that the plaintiff has held himself out as representing others cannot and does not amount to the court making a person to represent other people. It is only if leave is given or an order is made by the court for representation that it can be logically argued that the court is making a person represent other people. This comment is in passing and I shall deal with the point fuller later on in the judgment if need be.

Ademola, J.C.A. continuing his judgment dealt with the 2nd ground of appeal as follows:

“‘The other ground for the allowance of this appeal and one which is important is that the respondent, if even he represents those he claims to represent, has no locus standi as the declaration of the Olu of Agege chieftaincy made no room for families as persons entitled to provide candidates for the chieftaincy. On the contrary, candidates for the chieftaincy are members living in the quarters to which the town has been divided who can do so. The declaration so made is Exhibit D in these proceedings. The parties agreed and so was the learned judge that Exhibit D is declaratory of the native law and custom of the chieftaincy in as much as the respondent did not bring the action as male resident of one of the four quarters mentioned in the declaration he has no locus standi to bring a declaration to challenge anything done by the appellants under the declaration which is the customary law of the chieftaincy.”‘

On the issue of locus standi, I only refer to the evidence of 1st witness for defendants which reads:

“‘I know the plaintiff, Yekini Otapo. He is a member of my party at Gbogunleri quarters. Agege.”………………..

Under cross examination, he said:

“Otapo is an important person in Isale Oja/Gbogunleri quarters.”

Having regard to the nature of the claims, the state of pleadings, i.e. the facts pleaded in the statement of claim and the statements of defence and the evidence the question of locus standi of the plaintiff/respondent is one that must not be given a superficial consideration.

It would appear that the documents filed by the plaintiff/respondent, Alhaji Chief Yekini Otapo and his disclaimer of any further opposition to the appointment of the 2nd defendant, appellant/respondent must have in no small measure deprived the matter of the serious consideration it deserves from the Court of Appeal. More importantly, the Court of Appeal overlooked the fact on record that at one stage of the proceeding in the High Court there was a move to have Alhaji Yekini Otapo substituted by the present appellant Moraino O. Adebari, Alhaji Sule Idowu Omonigbeni and Alhaji Lateef Ogunji as plaintiff following a resolution of the represented families.

It appears that the represented ——families were dissatisfied with the decision of the Court of Appeal and with leave of the Court of Appeal. Moraino O. Adebari filed his notice of appeal against the judgment. There were six grounds of appeal filed. Grounds 1, 2 and 6 on which the appeal was allowed on the 17th day of February, 1987 read:

1. That the learned Justices of the Court of Appeal erred in law in unilaterally amending the title of the suit to reflect only Alhaji Chief Yekini Otapo as respondent.

Particulars of Error

(1) The order of Jinadu. J. that Alhaji Chief Yekini Otapo was suing for himself and on behalf of Isale Oja Gbogunleri quarters substited until 21st October. 1985;

(2) There was no formal application for amendment of the title of the suit and counsels were not called upon to even address the court before the amendment was made;

2. The learned Justices of the Court of Appeal erred in law when they proceeded to hear the appeal on the 21st October, 1985 and to have ordered that the need to file briefs be dispensed with.

Particulars

(1) That date (i.e. 21st October, 1985) was a date fixed unilaterally by counsel for 7th-10th defendants/respondents in an application which was not served on the appellant or his counsel.

(2) No hearing notice was served on the plaintiffs/respondents or their counsel:

(3) The motion dated 14th October, 1985 and filed on 16th October, 1985 was not served on the plaintiffs/respondents or their counsel;

(4) Neither the appellant nor his counsel was heard on the 21st October. 1985 despite the fact that he was in court and his counsel evinced an intention to be heard:

(5) Neither the appellant nor his counsel was heard on the propriety of dispensing with the need to file briefs when the order was made:

(6) The plaintiffs/respondents with the exception of Alhaji Chief Yekini Otapo did not back out of the appeal and did not authorize anyone to back out of the appeal on their behalf;

(7) Neither the plaintiffs/respondents nor their counsel were served with any notice that the record of appeal was ready for collection.

6. The learned Justices of the Court of Appeal erred in law in failing to give the appellant any hearing at the hearing of the appeal.

Particulars

The denial of a hearing to the appellant who was a member of the Isale Oja/Gbogunleri quarters or section in spite of the unilateral withdrawal of the nominal plaintiff was contrary to section 33(1) of the 1979 Constitution.

The issues for determination formulated by the appellant at page 4 of his brief are four in number. They read:

(1) Whether the Court of Appeal was right in holding that no leave of court was obtained to represent members of Isale Oja and Gbogunleri section of Ogunji, Adebari, Otapo and Asunmoge Olu Chieftaincy families;

(2) Whether the plaintiff has locus standi to bring this action;

(3) Whether the Court of Appeal was right in dismissing the plaintiff’s claim after holding the plaintiff has no locus standi.

(4) Whether in all the circumstances of this case, it was proper for the Court of Appeal to have refused to listen to the appellant on the 21st of October, 1985 when the appeal was argued.

It appears to me that the issue of rep00resentative capacity in which Alhaji Chief Yekini Otapo sued is inextricably tied up with the issue of fair hearing raised in this appeal. The learned counsel for the appellant, Chief Gani Fawehinmi in his arguments both in his brief and at the oral hearing, submitted that Alhaji Chief Yekini Otapo sued in a representative capacity and that leave was given to him by the court to sue in that capacity.

Ogunade, learned counsel for 1st to 6th defendants/respondents and Bishogun, learned counsel for 7th, 8th, 9th and 10th defendants/respondents in their submissions contended the contrary Order 13 Rule 14 of the High Court of Lagos State Civil Procedure Rules provides:

“where there are numerous persons having the same interest in one cause or matter, one, or more of such persons may, with the leave of the court or a judge, sue or be sued, or may be authorized by court or a judge in chambers to defend any such cause or matter, on behalf or for the benefit of all the persons so interested.”

It is this rule that was invoked both in the High Court and the Court of Appeal to challenge the competence of Alhaji Chief Yekini Otapo to institute the action. The allegation was that he did not obtain the leave of the court to sue on behalf of himself and members of Isale Oja Gbogunleri section of Ogunji Adebari and Asunmoge Olu Chieftaincy families of Agege.

Learned counsel for the appellant, Chief Gani Fawehinmi submitted that leave was granted and referred to the record of proceedings. The record of proceedings shows that when the application dated 14th October, 1982 for leave to amend the statement of claim was moved on the 10th day of October, 1982 to plead that the plaintiff sues on behalf of himself and in a representative capacity, objection was taken by counsel for 1st to 6th defendants.

The Learned trial judge overruled the objection and granted leave to plead the representative capacity in which Alhaji Chief Yekini Otapo sues. It is pertinent at this juncture to refer to the provisions of Order 3 Rule 2(1) of the High Court of Lagos State Civil Procedure Rules. It reads:

“If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the endorsement shall show in what capacity the plaintiff or defendant sues or is sued.” This Rule was complied with. When the plaintiff, Alhaji Chief Yekini Otapo filed a notice of motion for leave to change counsel, the facts deposed to in paragraph 1 of the supporting affidavit by Chief Alhaji Yekini Otapo put the representative capacity beyond question. The paragraph reads:

“1. That I am the plaintiff in this suit and the representative of the Isale Oja and Gbogunleri quarter of Ogunji Adebari Otapo and Asunmoge Olu Chieftaincy families of Agege.”

To show that instructions to counsel did not issue from him alone, he deposed as follows in paragraphs:3 and 4 of the affidavit

“3. That at a meeting of the aforementioned families on 28th February, 1982, the families decided to terminate the services of Olufemi Ajayi and Co.

4. That this decision was conveyed to Mr. Olufemi Ajayi, the leading counsel in the said firm.”

The pleadings and the proceedings in the trial court below show that the action was filed and prosecuted to judgment in a representative capacity. It is true that in keeping with Order 13 Rule 14 that it is more elegant for a plaintiff suing in a representative capacity if he desires leave to sue in that capacity to make an application simpliciter seeking leave to sue in that capacity. Unlike the provision of Order 3 Rule 2(1), the provision of Order 13 Rule 14 is couched not in mandatory but in permissive terms.

Even if an order for leave is not specifically sought, it will be presumed that leave to sue in that capacity was given if the title and the statement of claim reflects that capacity and the suit was prosecuted in that capacity to if judgment and judgment was given for or against the plaintiff in that capacity. The presumption will be stronger if objection to sue in the representative capacity in limine is overruled by the learned trial judge.

Learned counsel referred this Court to the case of Afolabi v. Adekunle (1983) 8 SC. 98 where the title did not show that the plaintiff was suing in a representative capacity but the statement of claim and the evidence did show that he was suing on behalf of himself and other members of the family. During the course of my judgment in that case, I said at p.102 that:

“This court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial court can justifiably properly enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for and obtained.

See Ayeni v. Sowemimo (1982A) 5 SC.60

Docuko v. Bob Manuel (1967) 1 All NLR, 113 at 121

Mba Nta & Ors. v. Ede Nweke Anigho & Anor. (1972) 5 SC. 156 at 174-175.

Shelle v. Chief ASAJON (1957) 2 FSC, 68

Habib Disu v. L. W. Daniel Kallo, FSC. 216/1962 decided on 7/3/64.

It would be otherwise if the case is not made out in a representative capacity. Onwunalu Ndidi and Onwunalu v. Osademe (1971) 1 All NLR, 14 at 16.”

As judgment in the instant appeal was given in favour of the plaintiff by the trial court, in a representative capacity, it is for the benefit of not only the plaintiff, Alhaji Chief Yekini Otapo alone but also for all represented parties and that brings me to the issue of fair hearing raised by the appellant in this appeal.

It is on record that Alhaji Chief Yekini Otapo did not contest the appeal. Not only did he not contest the appeal, he presented himself as the only opponent to the 2nd defendant and expressly stated in the documents filed that it was because of pressure from people that he decided to withdraw his opposition and not contest the appeal. The filing of a copy of the letter to the Governor of Lagos State emphasised that he has compromised his position and given the Governor the go ahead with the installation of 2nd defendant as the Olu of Agege.

The question for determination therefore is whether his action deprived the represented parties of the benefit of the judgment in their favour and of an opportunity of being heard in the appeal to the Court of Appeal.

Before proceeding with the examination of the question of fair hearing, it is necessary to discuss the position of a representative plaintiff. A representative plaintiff is the sole plaintiff and is Dominus litis until judgment, he can discontinue, compromise, submit to dismissal and other things as he decides during the course of the proceedings. If he falls out with the represented parties for any reason, the court has power to add or substitute any person represented though unnamed in the representative action and to bring him in as at the date of the original writ Moon v. Atherton (1972) 2 OB. 435; (1972) 3 WLR.57; (1972) 3 All ER 145 CA. Where several sue, they have the like power as a single representative plaintiff but they must act together Leathley v. McAndrew (1876) WN.38.

After judgment, a representative plaintiff has no such power; he cannot deprive others in the same interest of the benefit of the judgment if they think fit to prosecute it, for after judgment, no further action can be brought by others. Handford v. Storie 2 S & S 196 Re, Alpha Co (1903) 1 Ch 203; Re Calgary etc. (1908) 2 Ch 652, C.A.

It can thus be seen that the action of Alhaji Chief Yekini Otapo in his failure to contest the appeal cannot be effective to deprive the represented parties of a right of hearing in the appeal. A denial of a right of hearing in the appeal is a denial of the constitutional right of fair hearing enshrined in section 33(1) of the Constitution of the Federal Republic of Nigeria 1979. It is also a breach of the rules of natural justice. It is also a breach of the Court of Appeal Rules.

The appellant herein, Moraino Adebari, was the candidate nominated by the plaintiffs, i.e. members of Isale Oja and Gbogunleri section of Ogunji Adebari Otapo and Asunmoge Olu chieftaincy families of Agege for appointment by the kingmakers as the Olu of Agege. He contested against the 2nd defendant/respondent who was appointed. He is one of the represented parties and he indeed testified at the hearing. He was therefore entitled to the benefit of the judgment delivered by the learned trial judge. That judgment was not only against the 2nd defendant/respondent but also against the other respondents including the Governor of Lagos State and the Government of Lagos State.

Section 33(1) provides that;

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

What is fair hearing It is common ground that Alhaji Chief Yekini Otapo, the plaintiff, was only a representative plaintiff. It is common ground that the representative capacity was endorsed on the writ of summons and pleaded in the statement of claim. It is common ground that judgment was entered in his favour for and on behalf of all the represented parties. It is common ground that before the appeal was listed for hearing. Alhaji Chief Yekini Otapo has filed in court a document declaring his intention not to contest the appeal or defend the judgment of the High Court. Attached to this document was also a copy of a letter to the Governor of Lagos State informing him of his withdrawal of his opposition to the installation of the 2nd defendant/respondent as the Olu of Agege. It is not disputed that the motion for an order of court waiving the filing of briefs in the appeal to the Court of Appeal and for hearing of the appeal without briefs was not served on the appellant or any of the represented parties. Finally, it is common ground that the Court of Appeal heard the application to hear the appeal without briefs of argument and granted the application. It is also common ground that the Court of Appeal heard arguments in the appeal filed by 8th to 10th defendants/respondents only from their counsel and learned counsel to 1st to 6th defendants/respondents without hearing any argument from the represented plaintiffs or their counsel, Alhaji Chief Yekini Otapo having announced in court that he was not interested in the appeal.

Was the hearing therefore fair A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing. When, therefore, the represented parties were not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot come within the category of fair hearing. Without fair hearing, the principles of natural justice are abandoned and without the guiding principles of natural justice, the concept of the Rule of Law cannot be established and grow in the society. As aptly stated by Nnamani, JSC, in Ex Parte Olakunrin (1985) 1 NWLR. 652 at 668.

“The principles of natural justice are part of the pillars that support the concept of the Rule of law. They are indispensable part of the process of adjudication in any civilised society. The twin pillars on which they are built are – the principles that one must be heard in his own defence before being condemned and that put shortly, no one should be a judge in his own cause.”

This is not a classic case of bias or real likelihood of bias but the failure by the Court of Appeal to give the represented parties an opportunity of a hearing when it was aware that Alhaji Chief Yekini Otapo was a representative plaintiff cannot but give the impression of bias. Beyond that, there is nothing to import bias a real likelihood of bias as was in the case of Legal Practitioners Disciplinary Committee v. Gani Fawehinmi (1985) 2 NWLR 300 (Part 7).

The test of fairness in appeal proceedings must of necessity differ from the test of fairness in proceedings at the Court of first instance. While in the court of first instance the true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case the true test of fair hearing in the Court of Appeal is whether having regard to the rules of court and the law, justice has been done and appears to have been done to the parties.

In this case, it cannot be said that there was fair hearing having regard to the despicable role played by Alhaji Chief Yekini Otapo who, having fought and obtained judgment for the quarters and families he represented, decided to succumb to pressures and forgo the right so dearly won without the authority of those he represented at the trial court.

The absence of affair hearing or rather the denial of fair hearing to the appellant and the other represented parties is fatal to the judgment of the Court of Appeal. It is a breach of the audi alteram partem principle of the rules of natural justice.

It was for the above reasons that I allowed the appeal of the appellant, set aside the decision of the Court of Appeal and remit the matter to the Court of Appeal for rehearing with an opportunity to the represented parties to be heard and not shut out.

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SC.250/1985