Alhaji Jimoh Arowolo V. Jimoh Oluwole Akapo & Ors (2006)
LAWGLOBAL HUB Lead Judgment Report
ONU, J.S.C.
By way of a motion on notice dated 19th July and filed on 27th July, 2005 the 1st respondent/applicant prayed this court for the following reliefs:
“An order that Chief Gafaru Arowolo be substituted as appellant in this suit for and on behalf of the Olaforikanre Ruling House of Itele in place of Alhaji Jimoh Arowolo now deceased.
And for such further and other order as the court may deem fit to make.”
On 19th June, 2006 when the motion came before this court for argument, learned counsel for the applicant, Professor A. B. Kasunmu, S.A.N. moved in terms of his motion which he submitted was brought pursuant to Order 8 rule 9(2) of the Supreme Court Rules which provides:
“If it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of rule 11 of this Order, be made in that behalf to the court below or to the court either by any existing party to the appeal or by any person who wishes to be added or substituted.”
Learned Senior Advocate supported his application with an 8 paragraph affidavit deposed to by one Taofiki Musa, salient among which are:
“1. That I am a member of the Abidogun Atele family.
- That I am the Secretary of Abidogun Atele family.
- That my family has been adjudged by the High Court of Justice, Sagamu and the Court of Appeal, Ibadan as the family that is competent to produce Onitele of Itele from Imidawo Branch, Osa Branch, Ogunrombi Branch and Alagbeji Branch.”
Learned Senior Advocate after adverting our attention to a copy of the Court of Appeal judgment attached to his application marked exhibit CC finally urged us to grant the applicant his application.
Learned counsel for the respondent Mr. Eghobamien in reply, submitted that the deceased was first sued in the High Court and with the death of the appellant, the case died.
Learned counsel for the 1st respondent after urging us to dismiss the application cited in support of his submission the cases of Mbanu v. Mbanu (1961) 2 SCNLR 305; (1961) All NLR 652 and Osanugha v. Military Governor of Ekiti State (2001) 18 W.R.N. 1; In Re: Adeosun (2001) 8 NWLR (Pt.714) 200 and urged us in conclusion to refuse the application.
In reply, learned counsel for the 1st respondent referred us first to a 14-paragraph counter-affidavit sworn to by one Mr. Monday Akapo, the relevant paragraphs in which he deposed as follows:
“(1) That I am a member of Adogun-Atele family and I have the authority of the 1st respondent to swear to this affidavit.
(2) That Alhaji Jimoh Arowolo was sued as a defendant in suit HCT/137/92 and defended the suit in that capacity and not in a representative capacity.
(3) That Alhaji Jimoh Arowolo appealed to the Court of Appeal, Ibadan as an appellant against the judgment of the Sagamu High Court and not in a representative capacity. The Court of Appeal, Ibadan suit was suit CA/1/160/95.
(4) That judgment was given against the appellant by the Court of Appeal, Ibadan in appeal No. CA/1/160/95 which was not an appeal in a representative capacity.
(5) That the 2nd and 3rd respondents had withdrawn from the appeal before judgment was delivered by the Court of Appeal, Ibadan on 21st November, 2002.
(6) That the Court of Appeal, Ibadan stated on 27th April, 2004 that it had no jurisdiction on the motion filed by the appellant for stay of execution on interlocutory injunction.
(7) ….
(8) ….
(9) That the suit starting from HCT/137/92 in the High Court Ota to CA/1/160/95 in the Court of Appeal, Ibadan was fought by Alhaji Arowolo as unrepresentative suit.
(10) That the applicant’s application to turn the suit into a family suit on behalf of Olafori-Kanre Ruling House is not proper having been fought as a personal suit by Alhaji Arowolo.
(11) That the High Court and the Court of Appeal have decided that the Adogun-Atele descendants namely: Imidawo, Ogunrombi, Osa and Alagbeji constitute the ruling houses in Itele and that conclusion excludes the appellant. On the same basis, the applicant who is the brother of Alhaji Arowolo cannot contest for the stool of Itele.
(12) That Alhaji Arowolo died on 1st April, 2005.
(13) That paragraphs 4, 5, 6, 7 & 8 of the affidavit are misconceived untrue, and should be struck out.”
In reply to the counter-affidavit Chief Gafaru Arowolo deposed in the following paragraphs:
“(1) That I am a brother to the appellant (now deceased) in this matter by virtue of which I am conversant with the facts of this matter.
(2) That the facts deposed to herein are facts within my own personal knowledge and that given to me by Miss O. F. Salami counsel in Chambers assigned to this matter and I verily believe same to be true.
(3) That at the High Court Of Ogun State Ota, in suit No.HCT/137/92 the respondents to this appeal (as plaintiffs) sued Alhaji Jimoh Arowolo (as 1st defendant) and sought a declaration and an order to remove and restrain the said Jimoh Arowolo from acting as Oba of Itele.
(4) That although the said Jimoh Arowolo was sued in his personal capacity, the main issue before the trial court was
(a) Whether or not the Olaforikanre family (the Ruling House that presented the defendant/appellant for the stool of Oba of Itele) forms part of the Four Ruling Houses (carved out of the Adogun Atele family) to wit: Imidawo, Ogunrombi, Osa and Alabejo ruling houses eligible to hold the title of Oba of Itele.
(b) The appellant (defendant therein) not being a descendant of the Adogun Itele family within the Four Ruling Houses ineligible to hold the title of the Oba of Itele. Attached and marked exhibit AA is a copy of the writ of summons filed in the said matter.
(5) That on the 16th day of June, 1995, the High Court sitting in Ota Ogun State gave judgment of the High Court on the above issue. Attached and marked exhibit BB is a copy of the said judgment of the High Court.
(6) That on the 21st day of November, 2002, the Court of Appeal sitting in Ibadan confirmed the judgment of the High Court on the above issue. Attached and marked exhibit CC is a copy of the said judgment of the Court of Appeal.
(7) That the defendant being dissatisfied with the above mentioned judgment filed an appeal to this court.
(8) That it was in the course of the preparation of the brief of argument in this appeal that the appellant died.
(9) That the appellant in his defence of the matter equally stated in his defence that his family forms part of the ruling house and members of the family gave evidence in support of defence.
(10) That although the said Oba Jimoh Arowolo was sued personally he defended the action for and on behalf of the family.
(11) That the said judgment now on appeal affects the rights of the family to claim entitlement to the stool of Itele and it is therefore in the interest of justice to allow the family put forward a member as appellant in place of the late Oba Jimoh Arowolo.
(12) That am informed by Miss O. F Salami (Counsel in Chambers) and I verily believe same to be true that it will therefore be in the interest of justice and the final determination of the issues in controversy between the parties if this application is granted and the name of the appellant substituted. (Italics is mine for emphasis.)
Learned Senior Advocate finally referred us to this court’s decision in Aderogba v. Olaopa (1961) All NLR 679.
Having carefully considered the arguments proffered by both sides and having examined the documents tendered in support thereof, most especially the writ tendered and marked exhibit AA; the judgment of the High Court of Ogun State sitting at Ota vide exhibit BB, the Court of Appeal, Ibadan judgment, to wit: exhibit CC and the decision of Aderogba v. Olaopa (supra), this application in my view, merits to be granted.
In the case of Mbanu v. Mbanu (supra), an application for leave to be substituted as a party, the action originated before the High Court, Eastern Region.
An appeal to the Supreme Court was perfected; but before the appeal could be heard, the appellant died. Ephraim Nnabugwu brought this application to the Federal Supreme Court for leave to be substituted as appellant.
The pleadings showed that the applicant had such an interest in the subject matter of the action as might have entitled him to be added as a party to the action, and might also have entitled him to bring an appeal under sub-section (6)(a) of section 110 of the Constitution of the Federation, 1960.
The applicant did not apply to be made a party to the action; and, at the time of the appellant’s death the time for appeal had expired; so that that course was then closed to him. There was no transmission of the appellant’s interest in the subject-matter to the applicant upon the appellant’s death.
Held:
A person to whom a deceased party’s interest in the subject matter of proceedings has not been transmitted on the death of the party will not, on his own motion, be substituted as a party to the proceedings in the place and stead of the deceased.
In the instant case which is clearly distinguishable from the Mbanu case (supra), it having been demonstrated that the judgment on appeal affected the rights of the family and the interest of justice demands that a member of appellant’s family be put forward in the place of late Oba Jimoh Arowolo, it will be inequitable to refuse the appellant’s application as couched and argued.
Accordingly, I am of the view that the application be granted as prayed and an order is hereby made to substitute Chief Gafaru Arowolo in place of Alhaji Jimoh Arowolo, now deceased vide Order 8 rule 9(2) Supreme Court Rules.
SC.200/2003 (R)
