Folajin Pabiekun And Ors V Gbadamosi Ajayi (1966)
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BAIRAMIAN, J.S.C.
The respondent obtained judgment in Suit 1/135/57 against Alphonso Pabiekun, who defended the suit as representing the Pabiekun family, and took out writs of execution to recover the judgment debt. After the attachment of certain immovable property, the appellants laid claim to the farms at Kanga, Ologan and Araromi in Ife District and also to the house at Yakare compound, Ife, alleging in their Statement of Interest that they are the exclusive owners of the farms, and that the house is the joint property of all the children of the late Pabiekun, and alleging further that they were not parties to the suit No. 1/135/57 and did not authorise Alphonso Pabiekun to represent them in defending that suit.
We note here that the 1st appellant is a son of Pabiekun; the other two are minor children of another son, and the 1st appellant was claiming for them too, as their next friend. As to the second allegation Oyemade J., believed that the 1st appellant knew of that suit and was bound by the result. As to the claim of ownership, the learned judge found that the farmlands were allotted to the Pabiekun family, a branch of the Lukugba family, and belonged to the Pabiekun family, as also did the house, and execution could be levied for a debt of the Pabiekun family. Hence this appeal.
It was not seriously argued for the appellants that they were exclusive owners of the lands attached: the arguments for them were on other lines. The main argument was that the appellants had not authorised Alphonso Pabiekun to defend on their behalf and were not bound by the judgment in suit 1/135/57, so the farms they occupied could not be attached. This is an attack on that judgment, but that judgment is not under appeal. That suit was against Alphonso Pabiekun on behalf of himself and other members of Pabiekun family; the defendant applied for an order to defend the suit in a representative capacity with an affidavit and a resolution, and the order was made. It is true that the 1st appellant did not sign that resolution; but he knew of the suit, and if he did not want Alphonso to be the champion of the Pabiekun family, he ought to have taken steps at the time. He cannot impugn the validity of that order and of the judgment against the Pabiekun family in this interpleader claim to exclusive ownership of some of the lands attached. That order and judgment stand.
The other argument is that the writs of execution are for the attachment and sale of the immovable property respectively of Yesufu Pabiekun, Elizabeth Pabiekun, and Latundun Pabiekun. We note however that at the bottom of each of the writs it is stated that “the immovable property of the defendant comprises (or ‘consists’) of. .. owned by (or ‘belonging to’) the Pabiekun family;” and that makes it clear enough that the execution is against the Pabiekun family property for the judgment against the Pabiekun family.
The decision in the interpleader summons now under appeal is that the properties attached belong to the Pabiekun family, not to the claimants; they may be in occupation as members of the family but not as owners.
The appeal is dismissed with thirty-three guineas costs to the respondent/judgment creditor.
Other Citation: (1966) LCN/1312(SC)
