Tijani Bambe & Ors V Alhaji Yusufu Adetunji Aderinola & Ors (1977)

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MADARIKAN, JSC. 

In Suit No.LD/1034/74 in the High Court, Lagos, the plaintiffs took out a Writ of Summons against the defendants. Pleadings were ordered. In their Statement of Claim, the plaintiffs averred that the Ijaiye National Society was founded in 1931; that on the 10th of December, 1948, it was “duly registered and incorporated under the Lands (Perpetual Succession) Act”; that consequent upon certain disagreements amongst members of the Society, a faction of the Society consisting of the 1st to 7th defendants, made some false representations to the 8th defendant as a result of which the 8th defendant issued a fresh certificate to them “purporting to change the name of the Society and cancelling the previous registration of the Society”.

The plaintiffs also accused the 1st to 7th defendants of interfering with the property of the Society and concluded their Statement of Claim by claiming-  “(1) DECLARATION: (i) That the Ijaiye National Society, Lagos, was validly registered and incorporated as a Society under the Land (Perpetual Succession) Act, Cap. 98. (ii) That the registration of the Society is valid and subsisting . (iii) That the purported change of name of the Society to Ijaiye National Society, Abeokuta, Lagos Branch effected by the 8th defendant at the instance and in favour of the 1st to 7th defendants is null and void and of no effect.  

(2) INJUNCTION TO RESTRAIN: (i) The 8th defendant from cancelling the registration of the Society and (ii) The 1st to 7th defendants from claiming to be successors-in-title to the Society and (iii) The 1st to 7th defendants from claiming ownership of, or interfering with the property of the Society.   (3) Special and general damages of N30,000.00 (thirty thousand naira) against the 1st to 7th defendants for interfering with the property of the Society particularly the Society’s registered land situate, being and lying at 23/25 Kosoko Street, Lagos.

After a copy of the Statement of Claim had been served on the defendants, the 1st to 7th defendants filed an application in the lower court. This appeal is against the ruling of the lower court on the application.    The application was for an order – “(i) striking out the above action on the grounds stated in the First Schedule to this Motion on Notice; (ii) in the alternative, dismissing the said action on the grounds set forth in the Second Schedule to this Motion on Notice.” and the First and Second Schedules as set out in the application were in the following terms:-   “First Schedule 1. Any action for the reliefs claimed can only be brought in the name of the Registered Trustees of the Ijaiye National Society, Lagos. 2. The Registered Trustees of the Ijaiye National Society have ceased to exist as a corporate body at the time of the commencement of this action.

3. The said Registered Trustees of the Ijaiye National Society have not duly authorised the commencement of this action. 4. All the parties interested in the action have not been joined or properly sued.   Second Schedule Even if all the facts pleaded in the Statement of Claim were admitted the plaintiffs will not be entitled to any of the reliefs claimed”. After hearing arguments on the application, the learned trial Judge (Adebiyi, J.) referred to Order 22 Rule 1 of the High Court of Lagos (Civil Procedure) Rules, 1972 and dismissed the application for the following reason:-   “There can be no doubt that the application is in the nature of a demurrer and cannot be allowed until pleadings are completed.

I daresay that there is an inherent jurisdiction in this court to prevent this process being abused but that cannot be used in a way that would revive a procedure that has been abolished – See Tomkinson v. S.E. Rly. 57 LT 358”. The main points canvassed before us on behalf of the appellants posed the following question. Was the learned trial Judge right in the view he has taken that the application was in the nature of a demurrer, and that by virtue of Order 22 Rule 1, it could not be allowed until pleadings were completed?   The word “demurrer” came from the Latin word “demorari” meaning to “wait” or “stay”. Before demurrer was abolished, one of the methods of fighting an opponent’s pleading was by demurrer. The party who demurred would not proceed with his pleading but, having raised a point of law as to whether any case had been made out in his opponent’s pleading for him to answer, awaited the decision on that point.   

Order 22 Rule 1 has, in clear terms, abolished demurrer; and, at the same time, Rules 2 to 4, which we now reproduce, make adequate provisions for proceedings in lieu of demurrer: 2. Any party shall be entitled to raise by his pleadings any point of law and, unless the court or a Judge in chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial. 3. If, in the opinion of the court or a Judge in chambers, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the court or Judge may thereupon dismiss the action or make such other order therein as may be just. 4.

The court or a Judge in chambers may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or a Judge in chambers may order the action to be stayed or dismissed or judgment to be entered accordingly, as may be just”   In construing the provisions of Rule 1, it will be wrong to ignore the provisions of Rules 2 to 4. Order 22 is similar to Order 25 of the Rules of the Supreme Court applicable in England in 1963. Order 22 not only abolishes demurrers but substitutes a more summary process for getting rid of pleadings which shows no reasonable cause of action. (1963. The Annual Practice page 571).

As the objection taken in the instant case could, if upheld, dispose of the whole action, we are of the view that it comes within the ambit of Order 22. We find ourselves unable to support the view expressed by the learned trial Judge that the objection was premature. In order to save time and expense, we will now proceed to consider the application on its merits instead of remitting it to the lower court.

The plaintiffs are the seven persons whose names appear in the heading of the Writ of Summons and Statement of Claim and it is expressly stated therein that they are “suing as the Registered Trustees of the Ijaiye National Society, Lagos”. They went further to aver in paragraph 1 of their Statement of Claim that they “are the accredited representatives of the Registered Trustees of the Ijaiye National Society, Lagos”.   Unless the necessary and proper plaintiffs are before the court, it will be futile to proceed to adjudicate on the issues in controversy as the action cannot be regarded as being properly constituted. 

In the instant case, if the plaintiffs as registered trustees had intended to bring this action as a corporate body, it ought to have been brought in the corporate name under Section 2(3) of the Land (Perpetual Succession) Act. (See Ode & Ors. v. The Registered Trustees of the Diocese of Ibadan (1966) 1 All NLR 287 at page 289). Or did they intend to sue as individuals? Or did they intend to sue in a representative capacity and, if so, in what representative capacity? Inasmuch as these questions remain unanswered, we must hold that the action is defective as it is not properly constituted.  

The appeal is hereby allowed and the ruling of the lower court dated 18th November, 1974, is hereby set aside together with the order for costs. It is hereby ordered that the action be and is hereby struck out with N200 costs to the appellants in this court and N50 costs in the court below.

Other Citation: (1977) LCN/1952(SC)