Chief Otoola Atanda And Ors Vs Taiwo Akunyun And Ors (1988)

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BELGORE, J.S.C. 

In the High Court of Oyo State, sitting at Oyo, the plaintiffs, the entire members of Ogan Community, were represented by their leader, Chief Otoola Atanda, the Baogan of Okeho and Chief Adeniji Abese, the Abase of Baogan.

The defendants, members of Kisanija House, living in Ogan Quarters of Okeho were represented by Pa James Afolabi (now deceased), Mosudi Olanrewaju, Ogundokun Ajao and J.O. Afolabi. The suit concerned a piece of land at Ogan Quarters, Okeho in Oyo North. After hearing the evidence, Ibidapo-Obe J. dismissed the action of the plaintiffs. Dissatisfied with this judgment, Chief Adeniji Abese, now the surviving representative of Ogan Community in the suit, Chief Otoola Atanda having died during the pendency of the suit, appealed to the Court of Appeal against this judgment of 24th November, 1986.

This appeal was filed on 20th February, 1987. However, on 26th March, 1987, by a notice under Order 3 rule 18(1) Court of Appeal Rules, Chief Adeniji Abese withdrew the appeal and by an order under the hand of Ibidapo-Obe J. wherein he stated as follows: “I have listened to all the learned counsel on this issue. I share the view and feel inclined to follow Ezomos’ case that an appeal is entered when the Record of Appeal is received by the Court of Appeal. The heading and Rules of Court of Appeal in this application could appear to be innocuous as putting an end to this appeal. My Ruling therefore is that my Court takes note of the application to withdraw the appeal thus putting the appeal in abeyance as withdrawn.

The Registrar of this Court will from today put the case file in abeyance.” and the notice of appeal was struck out. On 11th May, 1987, Daramola Lahore and Sangodokun Akanbi, members of Ogan Community of Baogan Compound and Ibeji Compound respectively filed notice of appeal as interested persons seeking to be joined as parties/applicants. They attached memorandum of consent of Ogan Community authorising them to be their representatives in the appeal and also a memorandum by the two as consenting such representatives. They sought leave to appeal as interested parties but this was before the High Court at Oyo.

This application was withdrawn because of the difficulty encountered on the issue of jurisdiction and it was struck out on 17th June, 1987. They then filed another application at the Court of Appeal, Ibadan, relying on s.222(a) of the Constitution of 1979 and Order 3 Rule 3(2), and Order 3(3)(1) and Order 4(2) Court of Appeal Rules as interested parties. They also applied in the Court of Appeal for the following Orders: E (1) Substituting the applicants for Chief Adeniji Abese as plaintiffs/appellants.

(2) Restoring the notice and grounds of appeal filed by Chief Adeniji Abese as plaintiff/appellants. (3) Deeming as fully-filed the Notice and Grounds of appeal filed by Chief Adeniji Abese on 20th February 1987. This is in addition to application for (1) Leave to appeal against the decision of 24th November 1986 (supra), and (2) An enlargement of time within which to lodge an appeal against the said decision. On 13th January 1988, the Court of Appeal gave its ruling on the applications after hearing the counsel for the parties. Kutigi, J.C.A. in the lead ruling, concurred to by Omololu-Thomas, J.C.A. and Sulu-Gambari, J.C.A. found as follows:

“There is no doubt from the materials before the Court that the applicants are members of Ogan community. The materials before us also show that the plaintiffs/respondents sued in the High Court for themselves and on behalf of Ogan Community including the applicants. The applicants have also in addition shown in pares. 21, 22 &23 of the affidavit in support of the motion that they had each been allocated a residential plot of land in the area in dispute.

It has also been demonstrated particularly by Exh. E that the Ogan Community did not give their consent when the plaintiff/respondents withdrew the appeal they originally filed against the decision of the High Court. The question therefore is whether on the facts the applicants could be said to have shown sufficient interest in the matter. I answer in the affirmative. The applicants have in my view shown that they have sufficient interest in the property in dispute to enable them obtain leave of this Court to appeal (see Ojukwu’s Case (supra).

I have also perused the proposed grounds of appeal (Exh.G) and they appear to me to raise substantial point of law. It is therefore my view that the applicants are entitled to be given leave to appeal as Interested parties.” He then granted the prayers to appeal as interested parties and also granted extension of time to appeal. This appeal in this Court is against that decision of the Court of Appeal. The parties filed their briefs and the appellants’ brief set out the issue for determination as follows: 1. “Whether the Court of Appeal was right in granting the application despite the fact that it did not contain a prayer for an extension of time within which to apply for leave to appeal. 2. Whether the Court of Appeal was entitled to ignore the decision of the Supreme Court in Lamai v. Orbih (1980) 5-7 S.C. 28 which was brought to its notice.

3. Whether the Court of Appeal was right to have held that “by extending the time within which to appeal, time is also extended within which to ask for leave to appeal.” 4. Whether the Court of Appeal was entitled to, without taking oral evidence, hold that Ogan Community did not give their consent to the withdrawal of the appeal when there were conflicting depositions on the issue in the affidavits and counter-affidavits filed in the case.

5. Whether the Court of Appeal was right to have held that the applicants have shown that they had sufficient interest in the land in dispute to enable them obtain leave of the Court of Appeal. 6. Whether, in the premises, the appeal could be revived or resuscitated by the application.

7.Whether the reason which the Court of Appeal relied upon in granting the applicants an extension of time within which to appeal was advanced to explain why the applicants failed to appeal within the prescribed time.” The appellants relied on section 25(1) (2) (a) Court of Appeal Act and submitted that the ruling of the Court of Appeal was given in error in that the respondents did not before that Court ask for an extension of time within which to apply for leave to appeal. He cited the case of Bowaje v. Adediwura (1976) 6 S.C. 143, 145-147; Amudipe v. Arijobi (1978) 9 and 10 S.C. 27.

It would appear the counsel for the appellant never had a grasp of the issues involved in the Court of Appeal. The two respondents, being members of Ogan Community were presumed to be represented in the original action In the High Court.

They claimed they were not informed and neither did they consent to their appeal being withdrawn from the Court of Appeal by Chief Adeniji Abase. They attached memorandum signed by several persons in Ogan Community appointing the two respondents as their representatives to prosecute the appeal if Chief Abase was no longer interested. Thus the Community at least the majority of them believed their appeal was pending. On discovering what Chief Abese did, they acted promptly. This is properly within time as they reacted immediately by the applications.

The appellants’ counsel was somewhat lukewarm on his other grounds of appeal. He preferred to deal with lack of application for extension of time within which to seek leave to appeal, which was not the issue in the Court below. However, it must be pointed out that respondents prayers in the Court of Appeal centred mainly on S.222 (a) of the Constitution. The Court below was being told that an appeal was already pending and that the withdrawal by Chief Abese was not with the consent of Ogan Community. Paragraph 20 of the affidavit supporting the application in the Court below states clearly “That the order we seek from this Honourable Court is for:

(a) the substitution of our names for that of Chief Adeniji Abase as the Appellants in this case; (b) For extension of time within which to apply for leave as interested parties; (c) leave to appeal as interested parties; (d) extension of time within which to appeal. Where a case is prosecuted in representative capacity, the fact that the person representing the Community develops cold feet and withdraws is no bar to the case being continued in a representative capacity by others having interest in the subject matter. This is in line with the proposition that a person suing in representative capacity does so not for his benefit alone but for the benefit of the entire community he represents Afolabi v. Adekunle (1983) 8 S.C. 98. Because if he falls out with the people he represents for any reason the Court has power to add or substitute any person represented in a representative action and bring him in as at the date of the original action Otapo v. Sunmonu (1987) 2 N.W. L.R. 587, 591. It is now firmly established in our law that a person has right to protect his family property or his own property and can sue by himself or in representative capacity even if he cannot carry with him all those he is supposed to represent. (Anieka Melifonwu & Ors. v. Charles Ezenwa Egbuyi & Ors. (1982) 9 S.C. 145; Sogunle & Ors. v. Akerele & Ors. (1967) N.M.L.R. 58; Mba Nta v. Anigbo (1972) 5 S.C. 156,174; Nsima v. Nnaii & Ors. (1961) 1 All N.L.R. 306. Capacity to sue in a representative action can be challenged if it is shown that the applicant has no authorisation or has no interest in the subject-matter of the action (Russian Commercial and Industrial Bank v. Comptoir D’Escompte de Mulhouse (1925) A.C. 112. The counsel for respondent was not asked to address this Court. This is so because the appellants’ appeal had no merit. It was for the reasons advanced above that I dismissed this appeal on 20th day of June, 1988 and reserved the reasons for today. I awarded N500.00 costs to respondents/applicants.

ESO, J.S.C.: In this appeal the crux of the matter before this Court was whether when a person or persons representing a community could withdraw from action brought in a representative capacity that would deprive the community the opportunity of choosing others to represent them. I agree with my learned brother Belgore J.S.C. whose reasons for judgment I had the privilege of preview of, that it would be a travesty of justice if such case abates only because no order could be obtained to continue it in representative capacity by the substitution of other representatives who are prepared to carry out the litigation on behalf of the community. For this reason and the other reasons copiously stated in the judgment of my learned brother Belgore J.S.C., I dismissed the appeal on 20th June, 1988 with N500.00 costs to the Respondents.

NNAMANI, J.S.C.: J.S.C.: On 20th June, 1988 this interlocutory appeal came before this Court. Having read all the papers and record of proceedings, and having heard learned counsel to both parties, I was of the view that the appeal had no merit. I accordingly dismissed it and I indicated that I would give my reasons for this

Other Citation: (1988) LCN/2376(SC)