Habib Disu & Ors V. C. W Daniel-kalio (1964)
LawGlobal-Hub Lead Judgment Report
BAIRAMIAN, J.S.C.
In this appeal the defendants complain of the decision in the Lagos High Court Suit No. 147 of 1961 awarding the plaintiff damages for breach of contract.
In 1954 the plaintiff bought a piece of land from one Sadiku Adeniji, and entered into possession; he had a deed, and that was registered; it described the land and had a plan. A judgment given in 1960 made the plaintiff alive to the fact that the true owners were the Disu Labulo Family, and he made a contract to buy it afresh from the Family. He visited the land with the first defendant; he paid £850 down and undertook to pay the balance of £350 by the end of 1960; he was left in possession; on 21st December, 1960, he sent a cheque for £350 with a request for a conveyance.
The memorandum of the contract is as follows:
“HADJ HABIB DISU, SABITIYU ADAGUN, MUMUNI A. DISU, YUNUSA A. DISU.
Received from Mr G. W. Daniel-Kalio the sum of eight hundred and fifty pounds being part payment of four plots of land (150 x 200) erroneously bought from Mr Sadiku-Adeniji and now resold by us on behalf of Disu Labulo Family.
Balance of three hundred and fifty pounds to be paid ere the end of Dec., 1960.”
It is signed by the first, third and fourth, not by the second, of the persons named at the top of the Receipt (exh. B).
On the 23rd December, 1960, Mr Abayomi Disu, a solicitor, sent a letter to the plaintiff enclosing a cheque for £850 and beginning thus:
“I am instructed by my clients the Disu Labulo Family to forward to you a cheque for the sum of £850 which sum represents the deposit you paid for a piece of land at Obele.”
Paragraph 2 goes on to allege that at the beginning of December-
“it was agreed by both parties that if by the 15th December, 1960, the balance was not paid by you the whole negotiation would fall through.”
That was not the fact. Paragraph 3 alleges this:
“Moreover, you would observe that only four plots were bargained for by you, but it was later detected that you had made a misrepresentation and you were going to have six plots.”
What the plaintiff was going to have was the land he had bought in error from Adeniji; and that was known. The points in those two paragraphs were not pursued in the appeal.
To revert to the antecedents of the suit. The defendants returned the cheque for £350 in January; and they sold the land to a third person. In the course of the trial they put in a deed (exh. K) in which the four defendants are named as the vendors and which has this recital:
“And whereas at a family meeting held in December, 1958, the aforesaid Disu Labulo Family appointed the aforementioned Vendors the Family’s representatives duly competent and entitled to sign and execute conveyances in respect of the said Family’s land at Oju-Elegba Surulere.”
The Plaintiff’s claim for specific performance was defeated; Lambo, J. awarded him damages. The defendants have appealed on two grounds, of which the second reads thus-
“2. The learned trial Judge erred in law in holding that the receipt tendered by the plaintiff sufficiently complies with section 4 of the Statute of Frauds requiring a note or memorandum.”
That plea was alleged in the court below. Lambo, J. in effect decided that there had been part performance; and this aspect of his decision was not controverted in the argument on appeal, which moved along these lines:
One line of the argument was that the land should have been described adequately but was not, in the Receipt. On the other hand it was conceded that the land was known. In the Court’s view it was sufficiently described by the plaintiff’s previous purchase from Sadiku-Adeniji, which identified it for both sides to the contract.
The other line of argument was that the second defendant was not among the signatories of the Receipt. The answer to that is the letter from the Family’s solicitor: it acknowledges the fact that the contract had been made on behalf of the Family, of which she is a member, in fact one of the four authorized to deal with the Family land; it does not repudiate the contract on the ground that she did not sign the Receipt.
On either line of argument the second ground fails. In addition the plaintiff has the benefit of part performance, which was not controverted in the appeal.
The plaintiff sued the four defendants “for themselves and on behalf of Disu Labulo Family”. Their Defence makes no objection to that. Paragraph 2 of the Defence states that
“The first, second, third, and fourth defendants admit that they are members and accredited representatives of the Disu Labulo Family beneficial owners of a vast area of land in Obele-Oniwala of which the land in dispute forms part.”
They defended the suit on that basis. But their learned counsel at the trial in his closing address made this point:
“Defendants are sued in a Representative capacity. No order of court approving defendants being sued as representatives of the family-submits action is not properly before the court, cites Adegbite v. Lawal, 12 WACA 398, 399.”
At the trial of that case the defendants, quite early in the trial, took the point that they could not be sued in a representative capacity without the authority of the others whom the plaintiffs wanted them to represent; and the trial judge made an order that they should represent the others. The relevant local rule (Rule 3 in Order 4 of the former Supreme Court (Civil Procedure) Rules) reads as follows:
“Where more persons than one have the same interest in one suit, one or more of such persons may with the approval of the court be authorised by the other persons interested to sue or to defend in such suit for the benefit or on behalf of all parties so interested.”
That differs from Rule 9 of the English Order 16; and the Court of Appeal pointed out that locally the authority must come from those interested in the suit before the trial court can authorise the named defendants to defend on their behalf too. One hopes to see the English rule adopted. But the above local provision was in force at the trial of the present suit.
Dealing with the point made in the closing address for the defendants, the learned trial judge wrote this in his judgment:
“The defendants were sued in a representative capacity and although it was contended on their behalf that plaintiff obtained no order of court before suing them as such, they themselves admitted in effect by paragraph 2 of Defence, that they were defending this action in that capacity. This point was not made an issue at the trial. Even if it was I would hold that it is the defendants who should apply for the approval of the court to defend in a representative capacity-vide Adegbite v. Lawa1,12 WACA 398.”
The defendants object in the first ground of appeal that –
“1. The learned trial judge erred in law in
“(i) holding that it was for the defendants and not the plaintiff to apply to the court for an order that the defendants be sued in a representative capacity, and
“(ii) that the defendants were properly before the court despite the fact that there was no order of court authorising them to appear in a representative capacity: this decision is contrary to the judgment of the Federal Supreme Court in WACA 32/1955 between Amusa Gbadesere v. Aina Edu and others delivered by Foster Sutton F.C.J. on the 15th February, 1956.”
Part (i) of the ground of appeal is not in point: an order that the defendants be sued in a representative capacity could not be made without the authority of their Family, who, if asked for it by the plaintiff, would not have given it to help him. If the defendants had asked their Family for such authority, the prospects would have been better. In practice, when defendants are sued on their family’s behalf, it is they who, if so minded, obtain the family’s authority and apply to the court for approval. In this case the defendants did not apply for an order authorising them to appear in a representative capacity, and part (ii) of the first ground of appeal objects that they were not properly before the court, viz. no doubt, in that capacity. They cite Gbadesere v. Edu, in which the judgment said
“The appellant was sued in a representative capacity and it is perfectly clear that he had no authority so to appear. That being so, the learned trial judge erred in giving judgment against him. In these circumstances we have no alternative but to allow this appeal, but in doing so we desire to point out that this decision does not stop the respondents from bringing a fresh action if they are so advised.”
The defendants therefore argue that the judgment cannot stand, viz. no doubt, as a judgment binding on their Family.
The argument presupposes that the defendants had no authority to appear on behalf of the Family. Paragraph 2 of their Defence means that they thought they were competent so to appear: the point made by their learned counsel at the trial in his closing address, and repeated in their appeal, means that they were not competent: the question is, were they competent?
The solicitor’s letter recognises on the Family’s behalf that the first, third, and fourth defendants made a valid contract of sale on behalf of the Family, of which the second defendant is a member; the subsequent conveyance to a third person, which the defendants put in to bar an order for specific performance, is evidence that the four defendants have the authority of the Family to deal with the family land, or, at any rate, that they claim to have that authority; the plaintiff’s trump card in his suit is the solicitor’s letter.
Armed with it and with the Receipt, which is the memorandum of the contract, the plaintiff could have sued the three signatories of the Receipt: they represented the Family in making the contract, so they could have been sued as representing the Family for the enforcement of the contract. The plaintiff took the more cautious course of suing all the four whose names appear at the head of the Receipt as representing the Family.
There is a finding in the judgment that the second defendant was a party to this transaction, which warranted including her as a defendant. The defendants cannot in one breath say that they can validly sell family land, and in the next breath say that they cannot validly be sued in a case arising out of a valid sale; equally it would be odd if the Family were to say, after recognising the validity of the sale to the plaintiff by some of their members, that the plaintiff could not sue those members as representing the Family for repudiating the sale; but be it added that other members of the Family did not intervene either in the court below or in the appeal. The defendants were competent to defend on the family’s behalf, and there was no need for any fresh authority or any court order for them to do so. In the Court’s opinion, Adegbite v. Lawal and Gbadesere v. Edu differ on the facts and do not apply in the present case. The fast ground of appeal fails like the second, and the appeal will be dismissed.
It remains to add that learned counsel for the defendants also argued that there could be no judgment against them personally on the ground that they were sued in a representative capacity.
That is a novel point taken in the appeal and outside the true meaning of the first ground of appeal; it must therefore be disregarded. The defendants were sued ‘for themselves and on behalf of Disu Labulo Family’ according to the title of the suit in the record; the title stands, and the judgment must bear that title with its consequences.
For clearness’ sake this Order is made:
“That the appeal from the judgment of 18th December, 1961, in the Lagos High Court Suit No. LD/147/61 be hereby dismissed with costs of appeal assessed at thirty guineas, and that it be declared that the said judgment is against the defendants for themselves and on behalf of Disu Labulo Family.”
Other Citation: (1964) LCN/1159(SC)
