Joseph Afolabi & Ors V. John Adekunle & Ors (1983)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, JSC

In this case on appeal, the contending parties have based their claims to the land in dispute upon derivative titles. The central issue, which the learned trial judge resolved in favour of the plaintiffs, was whether the land was part of the land which, in 1939, OBA DOKUN LATONA II the ATAOJA OF OSHOGBO, granted to the father of the 1st plaintiff, one JOSEPH FOLARIN ADEKUNLE (now deceased), or whether it formed part of the area which the ATAOJA OF OSHOGBO granted to the OSHOGBO HAUSA COMMUNITY “from time immemorial.”

The 1st plaintiff, who is the accepted head of the Adekunle family, sold and conveyed to the 2nd plaintiff the land in dispute in the exercise of the claimed proprietary rights of the Adekunle family, while the 1st defendant purchased the same land from the 3rd defendant in purported exercise, by the 3rd defendant who was the SERIKI of the Hausa Community of Oshogbo, of the claimed right of ownership of the land in dispute by the said Hausa Community.

And so it was, that both parties agreed that the original owner of the land in dispute was the ATAOJA OF OSHOGBO. Despite the fact, however, that the High Court found as a fact that the said land in dispute was part of the larger area of land granted to the father of the 1st plaintiff, it none-theless non-suited the plaintiffs by reason of the fact that the land was granted, and belonged, to the family of the 1st plaintiff, and that he failed to sue in a representative capacity for himself and on behalf of the Adekunle family made up of himself and the other children of Joseph Folarin Adekunle.

PAGE| 2 The learned trial judge held as follows “As shown on the writ of summons and the statement of claim, the 1st plaintiff Instituted this action in his personal capacity jointly with the 2nd plaintiff with their claim against the defendants as set out in the earlier part of this judgment. However in the amended statement of claim after describing in the earlier paragraphs the situation of the land and how the grant of the land was made to the father of the 1st plaintiff it was stated in paragraph 8 as follows:- Paragraph 8: ‘After the said J.F. Adekunle’s death in 1970 his children including the 1st plaintiff as their head inherited the said parcel of land. Throughout his evidence in chief before the court, the 1st plaintiff never said anything about the Interest of the other children of his late father in the land in dispute despite the averment in paragraph 8 of the statement of claim quoted above thus giving the impression that he was the only one entitled to the portion of the land in dispute claimed by him. It was under cross-examination by Mr. Ojewunmi, learned counsel for the 1st and 2nd defendants, that he said as follows: ‘My father had total number of seven children made up of two males and five females. The children were born of four different mothers. My father had only four wives. All the children succeeded to the estate of my father. Up till now we have not applied for letters of administration in respect of the estate. The estate has not been distributed. My father had no other piece of land around the area where the land in dispute is situate. The development being undertaken by my father was on the part of the land near Sabo Road. Myself and the other children of my father have not undertaken any physical development of the land since the death of my father.

I only sold a portion of the land to the 2nd plaintiff.’ At no time did the plaintiff lead any evidence as to his representative capacity and the facts elicited from the plaintiff under cross-examination as quoted above are the only reference made to the other children of his father who have interest in the land. Even then no reference was made to the names of these other children of his father, who are not all of the same mother with him, nor was there any allegation made that they have consented to it. In my view and in agreement with the submission of learned counsel on this point the 1st plaintiff has prosecuted this action in a wrong capacity.”

The trial judge found himself unable to make any amendment to the writ of summons by reason of the difficulty which he considered to be insurmountable. He said: “Unfortunately, the difficulty created in this case is in my view insurmountable because If even I were to amend the writ of summons and the statement of claim to show the plaintiff as suing In a representative capacity the evidence led would still not support a judgment being entered in his favour in that capacity.”

PAGE| 3 Further on in the judgment he wrote: “In the circumstance that the 1st plaintiff sued in a wrong capacity and with a joint claim with the 2nd plaintiff as on their writ of summons. I cannot enter judgment for the plaintiffs in this case against the defendants as sought in their said writ of summons because there is no way I can amend the writ to show them suing together for and on behalf of the other children of J.F. Adekunle (deceased) (sic).” Before he made the order for non-suit he ruled that he would either dismiss the claim or non-suit the plaintiffs. He then called upon counsel to address him on which of these two orders he should make. This was what he said: “What is now left to consider is the decision to be recorded that is whether it should be one of dismissal or non-suit and 1 will like to hear the views of the counsel for the parties on this point in line with the principle laid down in the case of Mariam Ashabi Craig v. Victor Emmanuel Craig & Anor. 1967 NMLR 52. This is that where a court is disposed to entering a non-suit in a case the views of the parties must be heard by the court on what they consider an appropriate decision.” Both counsel for the 1st and 2nd defendants (Mr. Fatoki) and for the 3rd defendant (Mr. Adediran) submitted that non-suit was the order appropriate to meet the justice of the case in the circumstances. Counsel for the plaintiffs (Mr. Falade) also submitted that a non-suit order should be entered. He said: “I urge the court to enter a non-suit.” Whereupon, the judge entered an order for non-suit saying: “Court:- I will follow the principle laid down in the case of Chief Efflong Duke v. Etubom Henshaw (supra) that in a circumstance like this there should be a non-suit rather than a dismissal of the claim.” The plaintiffs appealed to the Federal Court of Appeal against the said judgment while the defendants cross-appealed complaining against the initial finding by the trial judge that the land in dispute formed part of the land granted to the 1st plaintiff’s father by the Ataoja of Oshogbo. Having upheld in its judgment the said trial judge’s finding that the land was part of the land granted to 1st plaintiffs father, the Federal Court of Appeal, in the interest of justice, amended the plaintiffs writ of summons, altering the capacity in which the 1st plaintiff sued, by adding the words: “for himself and on behalf of the J.F. Adekunle family”. It then proceeded to set aside the order for non-suit and in its place entered judgment for the plaintiffs for a declaration of title as claimed; N100.00 damages for trespass, and Injunction against the defendants. The foregoing is the background against which one must consider the submissions made by appellant’s counsel, Chief F.R.A. Williams. SAN, in his Brief, and amplified by him in his oral arguments. These submissions, in summary, were: (i) that the order of non-suit made by the trial judge was a consent judgment to which all the parties subscribed; that a party to a consent judgment cannot appeal against that judgment without leave of court; that leave not having been asked for or obtained, by the plaintiffs, their appeal to the Federal Court of Appeal was therefore incompetent, and the Federal Court of Appeal was therefore without jurisdiction to hear the appeal; (ii) that the amendment made by the Federal Court of Appeal was. ex debito Justitiae, improper, being too late in the day when amendment should be made; that at the stage when the trial judge asked the parties to address him on the Issue of dismissal or non-suit, the plaintiffs had the option to ask for amendment or for a non-suit, they chase to ask for non-suit; that the Federal Court of Appeal was wrong to have amended the writ at that stage of the proceedings. Had the plaintiffs amended their writ at the proper stage, the defendants might have amended their statement of defence and properly met the case of the plaintiffs; (iii) that the conveyance of the family land to the 2nd plaintiff by the 1st plaintiff in his personal capacity was, on the authorities, void and therefore the entry of judgment for the plaintiffs, by the Court of Appeal, was, in all the circumstances, improper. I propose to deal with these submissions seriatim: 1. The Non-Suit Order

PAGE| 4 In respect of the submission on this head, it is clear that the learned trial judge had found that the land belonged to the Adekunle family which was one of the matters in contest; that the trial judge had decided to either dismiss the case or non-suit the plaintiffs and faced the parties with those alternatives. In choosing an order for non-suit the plaintiffs were simply choosing a lesser of two evils. After all, they sued for a declaration of title, damages for trespass and injunction and wanted the court to enter Judgment for them in terms of their claim. They were not “consenting” to either of the two alternatives; they were simply faced by the trial judge with a dilemma in the two alternatives. If they did not choose the lesser evil of a non-suit they would be met peremptorily with an order of dismissal by which order their case would be shut out for ever. I conceive that “Consent Involves an element of volition; a voluntary agreement – a deliberate and free act of the mind. A party who bows to an adverse judgment of a court and in the course of it takes a step designed to minimize loss, cannot be said to have consented to the judgment of the court. Thus, in ODULAJA v. WILLIAMS (1940) 6 WACA 198 at 199 the West African Court of Appeal had this to say, in an appeal against a consent judgment, as to the part ordering payment by instalments, to which, it was alleged, consent was not given: “If, as is contended, the plaintiff-appellant did not agree to the part as to instalments, then it is clear that the parties were not ad idem and the ‘consent’ of the defendant is no consent at all.” As has been stated in RE LAY’S WILL TRUSTS SOMERSET AND ANOTHER v. LEY AND ANOTHER (1964) 2 All ER 326 at 329, in a consent judgment or order, the court has no power to compel a party to agree to a compromise. It is my view that once the element of compulsion comes in, the element of volition goes, and the subsequent order can never be “a consent order.” By the provisions of Order 28 rule 3 of the Western Region of Nigeria 1959 High Court Rules Ca. 44 Vol. II the court could enter non-suit without the consent of the parties. Rule 3 provides: “3. The court may in any suit, without the consent of parties, non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the Court.” What the learned trial judge did, by calling upon the parties to address him on what order to make – dismissal or non- suit – was merely to follow the advice of this Court in a number of cases (Craig v. Craig (1967) NMLR 52; Bakare Elufisoye v. Samuel Alabetutu (1968) NMLR 298 at 301; Mrs. Aigbe v. Bishop John Edokpolor (1977) 2 SC p.1; Omoregbe v. Lawani (1980) 3-4 SC 108) – namely – that where, at the dose of the hearing of a case, the trial judge should think of entering a non-suit, it is desirable that he should ask counsel for the parties for their submissions on the intended order. This is as it should be, as has been pointed, out in these cases, because the entry of an order for non-suit means that the plaintiff Is being given a second chance to prove his case – another ordeal against the defendant who, by the non-suit order, will of necessity enter Into a second litigation with the plaintiff. Again, the order could mean an injustice against the plaintiff who could claim to have satisfactorily proved his case and yet, was being required to once again commence his action anew and go into the ordeal of a new trial. It is for this reason that a trial judge should hear the parties on the important Issue of non-suit before making the order. Appellant’s counsel, in his Brief, had pointed out that this point of “Consent” was not raised before the Federal Court of Appeal but contended that it could be raised, for the first time, before us, because being an issue as to the jurisdiction of the Court of Appeal having regard to the provisions of S.121E(2)(f)(iii) of the Constitution (Amendment) (No. 2), No. 42 of 1976, the Supreme Court will entertain it. I am clearly of the view that the parties had not consented to the non-suit order and, therefore, the constitutional requirement that an appeal against a consent order should be by leave, does not apply here. 2. The Amendment by the Court of Appeal I now turn to the amendment made by the Federal Court of Appeal altering the capacity (hereinbefore set out) under which the 1st plaintiff instituted his action. In considering this Issue it is necessary to remember: (i). that the first plaintiff is the undisputed head of the Adekunle family; (ii) that In his paragraphs 8 and 17 of his amended statement of claim the 1st plaintiff averred that the land in dispute belonged to the children of J.F. Adekunle (which included himself) they having inherited the land since the death of J.F. Adekunle in 1970, together with “the stone foundation” built by their said father in 1968; included in these children of J.F. Adekunle were, he said. “his brothers and sisters”; and (iii) that the learned trial judge had found as a fact that the [arid in dispute was part of the land granted by the Ataoja of Oshogbo to the father of the 1st plaintiff – the said J.F. Adekunle. In his evidence under cross-examination the 1st plaintiff swore that all the children succeeded to the estate of his father – the said J.F. Adekunle. He put it thus:

PAGE| 5 “My father had a total number of seven children made up of two males and five females. The children were born of four mothers. My father had only four wives. All the children succeeded to the estate of my father.” And so, both in his pleadings and in his evidence, the 1st plaintiff had admitted, and conceded, that the land in dispute and the larger area of land of which the land in dispute formed a part, belonged to him and the other children of J.F. Adekunle. He had not claimed ownership of the land to the exclusion of the other children of J.F. Adekunle. There was, therefore, no dispute between him and the said other children of J.F. Adekunle. Having found as a fact that the land in dispute rightly belonged to J.F. Adekunle, and, by implication. that persons entitled to the estate of the said J.F. Adekunle were the owners of the land, that is to say, the 1st plaintiff and the other children of J.F. Adekunle, could the court be doing justice If it failed to grant a declaration of title to the 1st plaintiff and the rest of the children of the said J.F. Adekunle? I think not. It is the duty of courts to aim at, and to do, substantial justice and to allow such formal amendments, In the course of the proceedings, as are necessary for the ultimate achievement of justice and the end of litigation. The correct attitude of courts, in relation thereto, had been expressed by the West African Court of Appeal in GBOGBOLULU v. HODO (1941) 7 WACA 164 in which, at p.165, it set out the principle thus: “As soon as any question arose as to the capacities of the respective parties it was, in our view, the duty of the court to make any formal amendment in the claim which would make clear the capacity in which the plaintiff sued and the defendant was sued and the real point of controversy between them, provided that that could be done without any hardship to either party.” The same approach was made by the same Court in KOJO ATTA v. KWAKU APAWU and Others (1941) 7 WACA 75 at p.76 the Court ruled in favour of the amendment of the capacity in which the plaintiff was suing, once the plaintiff had made out his case in that capacity, as follows: “It is quite clear that the court below could not give judgment in favour of the plaintiff ‘as suing for himself and not in a representative capacity’ unless and until the writ of summons had been amended so as to alter the capacity in which the plaintiff sued. Having come to the conclusion that the plaintiff was suing in the wrong capacity but that he had made out a case in another capacity it would in our opinion have been quite proper for the court below to make the necessary amendment to the writ of summons provided the court was satisfied that such amendment could be made at that state of the proceedings without Injustice to the defendants.

Before making that amendment the court below would have to give the defendants the opportunity of being heard on the question whether making the amendment at that stage would involve injustice to them. The necessary amendment was not made in the court below, nor was any application made by the plaintiff in the court below for the amendment. Nor was any formal written application in that behalf made to this Court, but. when called upon in regard to Ground I (b) of the Grounds of Appeal, counsel for the respondent asked this Court, In the exercise of its powers under rule 31 of its Rules, to make the necessary amendment, and after doing so to uphold the judgment of the court below.” (Italics is mine for emphasis) The judgment of this Court in WALTER WIRI and 3 Others v. GODWIN WUCHE and 5 Others (1980) 1-2 SC 12 emphasis that in the interest of justice, amendments should be made to follow the facts established and accepted by court.

While recognizing that the Rules of Court should be followed by parties to a suit, it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them. Their Lordships of the Privy Council were clearly endorsing this principle when in ABABIO IV v. QUARTEY and Another [P.C. Appeal No. 94 of 1914 cited in ENGLAND v. PALMER (1955) 14 WACA 659), it stated that: The Court ought to have allowed all the necessary amendments that were required for the purpose or enabling the use or evidence that had been obtained for the purpose of settling the real controversy between the parties.” (Italics is mine)

In the same case reference was made to ECKLIN v. LITTLE (1889-90) 6 TLR. 366 (wrongly therein reported as SEKLIN V. LITTLE) In which, on a motion for a new trial, the court (Denman, Charles and Vaughan-Williams JJ.) amended the statement of claim in the action for slander to conform with the words proved at the trial, which were not those set out in the statement of claim, although the judge at the trial had offered plaintiff’s counsel an amendment of the pleadings but it had been refused.

The amendment of the writ of summons to reflect the representative capacity under which the 1st plaintiff should have sued, that is to say, for himself and on behalf of the J.F. Adekunle family” made by the Federal Court of Appeal appears to me to be justified by the evidence in his case and to have been dictated by the justice and merits of the case.

PAGE|6 3. The Conveyance by the first Plaintiff to the 2nd Plaintiff The last submission by which it was said that the conveyance (exhibit A) by the 1st plaintiff to the 2nd plaintiff was void ab initio was founded on general principles and more particularly on the decision of this Court in City Property Development Ltd. v. Attorney-General of Lagos State and Others (1976) 1 All NLR 28 in which it was held that Chief Yesufu Abiodun Oniru, as the head of the Oniru Chieftaincy Family, could not alone transfer family property and that If he alone executed a conveyance of family property as a grantor and a beneficial owner, the sale and conveyance must be void, unless he could show that the land had been transferred or given to him by the family. &nbs

Other Citation: (1983) LCN/2187(SC)