Caleb Akintunde V Salami Oyedoyin And Anors (1968)

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LEWIS,J.S.C.

The appellant in this appeal was substituted as defendant In Suit No. 1/79/59 where Oyemade J. In the Ibadan High Court on the 18th April 1962, gave judgment with costs for the plaintiffs as follows:-

“Declaration of title according to native law and custom in respect of the piece of land shown on the plan exhibit A and thereon edged red; there will also be judgment for the sum of £37:10:0 being arrears of Ishakole payable by the defendants.The claim for forfeiture is non-suited.”The amended Writ of Summons as set out in his judgment by the learned trial Judge had read as follows:-

“(1). Declaration of title to the piece of land in Afunimogbo area at Ode-omu in Oshun Division.

(2). Forfeiture of the defendant’s rights and Interest in the farmland situate and lying at Afunimogbo Ode-omu, which was originally granted by the plain-tiffs to the defendants and which is shown on the plan to be filed later.

(3). £37:10:0d being arrears of Ishakole payable by the defendants to the plain-tiffs on the said farmland and which the defendants have failed to pay in spite of repeated demands”.

Whilst the plaintiffs, according to the Statement of Claim, sued on behalf of themselves and members of the Oka Bale Ode-Omu family (leave to do so in a representative capacity having been granted though in our view this was unnecessary for a plaintiff under order 7, rule 9 of the Western Nigeria High Court (Civil Procedure) Rules, as has been previously indicated by this court), the original two defendants and the present appellant who was by order of the court substituted for them on their death were, according to the Writ and to the heading of the Statement of Claim, sued In a personal capacity. Paragraph 4 of the Statement of Claim, however, read-

“The Defendants are sued on behalf of themselves and on behalf of the Akintunde Family of Ode-Omu” and paragraph 1 of the Statement of Defence admitted, amongst other paragraphs, this paragraph 4 in the Statement of Claim. Nonetheless, Mr. Babalakin for the defendant/appellant took as his first ground of appeal that-

“(c)The learned trial Judge erred in law to have given judgment for the whole land shown on ex. ‘A’ in the absence of an order to defend the suit in a representative capacity.”

He rolled on rule 9 of order 7 of the Western Nigeria High Court (Civil Procedure) Rules as, in his submission, requiring an order to be made enabling the defendant to defend in a representative capacity If the Akintunde family were to be bound and k was not disputed that no such order was either sought or granted. Moreover, rule 2 of order 2 of those rules required the Writ to be endorsed in a representative capacity If the defendants were to be so sued and it was not disputed that this was not done.

Nevertheless, having regard to the defendant’s own admission on his pleading that he was sued in a representative capacity on be-half of the Akintunde family, the way in which his defence at the hearing was con-ducted on the basis that the land was Akintunde family land, the fact that it was not disputed that he was rightly the representative of the Akintunde family, and also to the fact that no objection was even taken in the address of the defendant’s counsel to the learned trial Judge in regard to this point, we are of the view that he is now too late to raise the issue on appeal that he was wrongly sued in a representative capacity without a court order and following the decisions of this court in Disu v. Daniel Kalio F.S.C. 216/1962 on the 7th March, 1964, and Aboudu Bulai and anor v. Chief Omoyajowo S.C. 667/65 of the 29th February, 1968, cannot therefore rely on the failure to obtain an order of the court to defend in a representative capacity in order for the decision of the court to bind the Akintunde family as opposed to the defendant personally. In our view, therefore, the judgment is against Lawani Ladipo Akintunde himself and the Akintunde family of Ode-Omu.

The real Issue between the parties was whether the land in question, which was admittedly given by the plaintiffs’ family to the family of the defendant, was given unconditionally or whether it was granted under a customary tenancy to pay annual Ishakole and to leave the palm trees on that land belonging to the family of the plaintiffs. Mr. Babalakin in this regard next argued two grounds of appeal together, namely-

“(b) The learned trial Judge erred in law in his interpretation of exhibit ‘H’ as payment of tribute to the Bale does not mean the same thing as payment of Ishakole, which is payable as between landlord and tenant”, and:-

“(f) The learned trial Judge erred in law by upholding the claim of Ishakole, the relationship between the chiefs and their followers not being that of landlord and tenants.”