ALHAJI ARANSI LADOKE & ORS v. ALHAJI M. OLOBAYO & ANOR
(1994)LCN/0179(CA)
In The Court of Appeal of Nigeria
Monday, the 12th day of September, 1994
Case Number: CA/L/137/92
RATIO
APPEAL: WHETHER A SOLITARY GROUND CAN SUSTAIN AN APPEAL
Where at least one of several grounds in an appeal raises question of law alone that solitary ground will sustain the appeal, (see Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484. PER AYOOLA, J.C.A.
ACTION: WHETHER A PLAINTIFF HAS THE RIGHT TO SUE A DEFENDANT OR A REPRESENTATIVE IN CAPACITY
This court in Agbonikhena v. Egba (1987) 2 NWLR (Pt.57) 494 at 506 has held per Kolawole, J.C.A. that it is for a “plaintiff to decide whether he wishes to sue a defendant in a personal or representative capacity depending on the nature of the claim and when he so decides to sue a defendant in a personal capacity, it is not open to his adversary to force it upon the plaintiff to sue such a defendant in a representative capacity.” (Italics mine). Also in Arowolo v. Adimula (1991) 8 NWLR (Pt.212) 753, a judgment of this court, Achike, J.C.A. said “… it is beyond dispute that it is the prerogative of a plaintiff in any suit to name the defendant or defendants to the suit. Where the action is personal to the defendant or defendants, the suit must be prosecuted against the defendant or defendants in that capacity.” PER UWAIFO, J.C.A.
JUSTICES:
SAMSON ODEMWINGIE UWAIFO Justice of The Court of Appeal of Nigeria
EMMANUEL OLAYINKA AYOOLA Justice of The Court of Appeal of Nigeria
IGNATIUS CHUKUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria
Between
- ALHAJI ARANSI LADOKE
2. YEKINI ADENLE
3. IBRAHIM NDA
4. MR. BILIYAMINU – Appellant(s)
AND
- ALHAJI M. OLOBAYO
2. GANIYU IBRAHIM
(Suing for themselves and on behalf of 43 other members of the Alayabiagba Market Association, Boundary, Ajegunle). – Respondent(s)
AYOOLA, J.C.A. (Delivering the Lead Ruling): The respondents to this application Alhaji M. Olobayo and Ganiyu Ibrahim suing for themselves and on behalf of 43 other members of Alayabiagba Market Association Boundary, Ajegunle, (the Association) sued the applicants and two others in their personal capacities claiming declarations concerning the memberships of the executive committee of the Association accounts and injunction. The applicants brought an application for leave to defend the action in a representative capacity “for themselves and on behalf of all the members of the Alayabiagba Market save the 43 whom the plaintiffs purport to represent”. The application came before the High Court of Lagos State (Adeniji J) and was refused on 24th June 1992. On 6th July 1992, the applicants filed a notice of appeal at the High Court. On their counsel realising that some of the grounds of appeal raised questions of mixed law and fact an application was filed by counsel on behalf of the applicants for leave to appeal and for a stay of further proceedings. The application filed on 5th July 1992 was struck out by (Adeniji J.) on 23 October 1992 on the ground that the application was heard outside the 14 days allowed for filing such application.” The applicants thereafter brought this application before this court praying for the following orders: extension of time within which to apply for leave to appeal; leave to appeal; enlargement of time within which to file and serve notice of appeal deeming the Notice of Appeal filed dated 5th July 1992 as having been properly filed; granting leave to file and argue additional and further ground of appeal and a stay of further proceedings.
The respondents oppose the application on the main ground that the grounds of appeal do not show good cause why the application should be granted. Ground 1 and 2 of the grounds of appeal were criticised as being defective in that they allege error and misdirection at the same time. Ground 5, that the decision is against the weight or evidence is described as incompetent because no evidence has been led in the matter. Ground 3, 4 and the further grounds of appeal it is argued, though competent, do not raise substantial issues.
In substance this must be regarded as an application for leave to include and argue those grounds which are of mixed law and fact in the appeal. Where at least one of several grounds in an appeal raises question of law alone that solitary ground will sustain the appeal, (see Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484. In this case three of the six grounds of appeal raise questions of law only and are adequate to sustain the appeal. The notice of appeal filed on 5th July 1992 was filed within time, and, in my view, the applicants need no extension of time to file and serve notice of appeal, or leave to appeal on those three grounds.
As regards the two grounds which are of fact alone or of mixed law and fact, namely grounds I and 2, the defects pointed out in them can easily be put right by deleting the words “erred and” which appeared in those grounds. Ground I becomes purely a ground alleging misdirection in fact and Ground 2 one of misdirection in law. Particulars have been given in both cases of the misdirection alleged and no prejudice is occasioned to the respondents. I would grant leave to the applicants to include as part of their grounds of appeal and argue the two grounds which raise questions of mixed law and fact or of fact alone. As to Ground 5 which alleges that the decision is against the weight of evidence, there is nothing in the papers before us to show that evidence (either by affidavit or orally) was given by the respondents. In the circumstances leave to argue that ground cannot at this stage be granted. Liberty is reserved however to the applicants to apply for leave to argue that ground should the circumstances justify such application.
The applicants’ application before the High Court touches on the constitution of the action. I think it is right to determine whether the action is properly constituted when the applicants are sued in their personal capacities before the action proceeds further. Should the action proceed before this appeal is determined the appeal will be rendered nugatory. For these reasons I would grant the application for a stay of proceedings.
For the reasons which I have given:
(1) I strike out the prayers in the motion paper for an order for enlargement of time within which to file and serve notice of appeal against the ruling of High Court of Lagos State delivered on the 24th June, 1992, the notice dated 5th day of July 1992 having been properly filed;
(2) I grant an extension of time within which to appeal and leave to appeal against the said ruling of the High Court on the two grounds of mixed law and fact namely Grounds 1 & 2 on the notice of appeal in addition to the grounds only of law in respect of which the applicants can appeal and have appealed as of right;
(3) I grant the applicants leave to file and argue the additional and further ground of appeal attached to the motion paper and marked Exhibit N6;
(4) I order that further proceedings in Suit No.LD/3072/91 now pending before the High Court of Lagos State be stayed pending the determination of this appeal.
PATS-ACHOLONU, J.C.A.: I have read the ruling of my learned brother E. Ayoola, JCA. and I agree with him. It is my view that the contention that the grounds of appeal are not substantial may not be decided at this stage. In the circumstance I abide by the order made pursuant thereto as one good ground of appeal is enough to give right of appeal.
UWAIFO, J.C.A. (Dissenting): This is a rather simple matter. By the time the arguments of both counsel were heard on 13th June, 1994, I had no doubt in my mind that the application lacked merit. I think the issues for consideration can conveniently be limited to three, namely: (1) Do the grounds of appeal show good cause why the appeal should be heard? (2) will it make any difference whatsoever to the case of the defence if the present defendants who are sued in a specific capacity for specific reliefs do defend without changing that capacity? (3) As a follow up to the first two issues, can it be said that the reliefs claimed by the plaintiffs will still fit the representative capacity being sought by the defendants and be appropriate to it?
The main contention in the lower court was whether in an action brought by the plaintiffs against the defendants in their personal capacity, it would be proper to order the defendants, on their application, to defend in a representative capacity.
In a matter of this nature and in order to appreciate what such an application entails, it is imperative to consider the cause of action. This is reflected in the claim which I consider necessary to reproduce as follows:
“1. A declaration that the defendants were by virtue of a unanimous decision of the Working Committee of the Alayabiagba Market Association Boundary, Ajegunle, Lagos State duly and lawfully suspended from office as the Executive Committee of the association with effect from the 18th day of December, 1990.
2. A declaration that the plaintiffs on record are the Executive Members of the Alayabiagba Market Association, Boundary Ajegunle, Lagos State.
3. An order that the defendants do render an account of all money or monies collected by them from members of the Alayabiagba Market Association, Boundary, Ajegunle, Lagos State being levies, rents, charges, dues and by whatever name called collected and various times between 1982-1990.
4. A perpetual injunction restraining the defendants from parading themselves as Executive members of Alayabiagba Market Association, Boundary, Ajegunle, Lagos State and from doing anything pursuant to the said offices to wit collection of rents, dues, charges, levies and performance of such functions incidental thereto.
5. A perpetual injunction restraining the defendants whether by themselves, agents, servants or representative in interest or otherwise however from interfering in any way whatsoever with the performance by the plaintiffs on record of their lawful duties as the Executive Members of the Alayabiagba Market Association, Boundary, Ajegunle Lagos State.”
The defendants later applied to defend the action in a representative capacity.
From the available documents, it would appear that the intention was to defend the action for “themselves and on behalf of all the members of the Alayabiagba Market save the 43 whom the plaintiffs purport to represent”: see paragraph 17 of the affidavit sworn by Ibrahim Nda in support of the motion now brought in this court for the prayers being considered in this ruling. I shall later refer to those prayers more specifically.
The learned trial Judge (Adeniji, J.) on 24th June, 1992 refused to make an order for the defendants to defend the action in a representative capacity. He held that it was not shown that the reliefs claimed were for the benefit of all those intended to be represented. He probably meant that as proposed by the defendants, it was not shown that the said reliefs could be sought from those persons whom they seek to represent. He further held that the interests of the general members of that market were not the same as those of the named defendants in respect of defending the suit as regards those reliefs.
The defendants filed a notice of appeal containing five grounds on 6th July, 1992. But later they brought, as indicated earlier, the present motion in which they seek the following prayers:-
“(i) an order for extension of time within which to apply for leave to appeal against the ruling of the High Court of Lagos State in this case delivered on the 24th of June 1992.
(ii) an order for leave to appeal against the said ruling of the High Court of Lagos State delivered on the 24th June 1992.
(iii) an order for enlargement of time within which to file and serve Notice of Appeal against the said ruling of the High Court of Lagos State delivered on the 24th June 1992.
(iv) an order deeming the Notice of Appeal filed herein and dated the 5th day of July 1992 as having been properly filed.
(v) an order for leave to file and argue an additional or further ground of appeal.
(vi) an order granting a stay of further proceedings in this suit pending the determination of the appeal.”
A proposed further ground of appeal is attached to the motion as exhibit N6.
There is another document headed” Amended Notice of Appeal” filed on 5th March 1993. It contains 8 grounds of appeal. It was obviously filed well out of time and without leave of court. No reference was made in argument in this court to the said document. It does not seem to form any part of the present motion nor is there any motion backing it. I shall therefore simply discountenance it.
Learned counsel for the plaintiffs/respondents conceded that sufficient reasons had been adduced for not filing the appeal in time. But he argued that the grounds of appeal do not show good cause why the appeal should be heard and that leave to appeal should accordingly be refused. He said no appeal was pending and therefore no stay of proceedings should be ordered. He contended, however, that even if the defendants/applicants are able to proceed with an appeal, and the appeal succeeds, there is no way that that can affect the substantive suit and therefore there is no reason to stay the proceedings of the suit. This is because the court can give judgment in the proper capacity, even on appeal on the authority of Afolabi v. Adekunle (1983) 8 S.C. 96 at 102; (1983) 2 SCNLR 141 at 149-150; 154.
In the present case the proposed grounds of appeal insist that the defendants should have been allowed to defend in a representative capacity; that is to say, for themselves and on behalf of the members of Alayabiagba Market (except the 43 members on whose behalf the action is brought). I have considered the said grounds of appeal along with the cause of action of the plaintiffs. It seems when it is realised that the plaintiffs are seeking reliefs directly against the defendants to forbid them from doing certain things, to get them to recognise the plaintiffs’ status and to compel them to render account, the defendants have not shown prima facie that such reliefs should be sought against all the said members of Alayabiagba Market instead of only against them, the said defendants.
This court in Agbonikhena v. Egba (1987) 2 NWLR (Pt.57) 494 at 506 has held per Kolawole, J.C.A. that it is for a “plaintiff to decide whether he wishes to sue a defendant in a personal or representative capacity depending on the nature of the claim and when he so decides to sue a defendant in a personal capacity, it is not open to his adversary to force it upon the plaintiff to sue such a defendant in a representative capacity.” (Italics mine). Also in Arowolo v. Adimula (1991) 8 NWLR (Pt.212) 753, a judgment of this court, Achike, J.C.A. said “… it is beyond dispute that it is the prerogative of a plaintiff in any suit to name the defendant or defendants to the suit. Where the action is personal to the defendant or defendants, the suit must be prosecuted against the defendant or defendants in that capacity.” These pronouncements no doubt represent the law. Although no authority was cited in support of the propositions in those two cases, they are available.
I think I can usefully refer first to the Supreme Court case of Afolayan v. Ogunrinde (1990) 1 NWLR (Pt.127) 369 which establishes that a party against whom there is no cause of action cannot be made a defendant. Obaseki, J.S.C. who gave the leading judgment said so at page 386. All the other learned Justices concurred in it. I shall refer specifically to what two of the Justices said. At page 394, Karibi- Whyte, J.S.C. observed inter alia:
“I refer finally to the two additional grounds of appeal. The grounds attempt to fault the judgment on the ground that the action was not properly constituted since the Inishan Community, appellant’s community, was not made a party to the action. I regard this ground as a mis-understanding of the complaint of the respondents and the nature of the declaration and the reliefs sought. No averment in the pleadings complained against the conduct of the Inishan Community.
The complaint is against the appellant and his insistence and intransigence on wearing a crown in defiance of the hierarchy of the established and accepted native law and custom …
The Inishan Community has not been alleged to have violated the native law and custom of the Oko Community; only the appellant did. There is therefore only a cause of action against the appellant.
It would have been wrong to have joined the Inishan Community.”
(Italics mine)
The observation, to the same effect, made by Agbaje J.S.C. at page 396 was as follows:
“There is also the point made by counsel for the defendant before us that this action between the plaintiffs and the defendant alone was not properly constituted in that a necessary party i.e. the Inishan Community, was not made a party to the proceedings by the plaintiffs. Counsel for the plaintiff (sic: defendant) has not shown in what way the presence of Inishan Community before the court was necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the present action. For my part, I cannot say that the presence of Inishan Community before the court is necessary before the claims of the plaintiffs against the defendant can be effectually and completely decided.”
I now proceed to refer to another authority which is also quite instructive. In Barker v. Allanson (1937) 1 K.B. 463, a rule (i.e. Order XVI, r. 9 of the Rules of the Supreme Court of England) which is in pari materia with Order 13, r. 14 of the High Court of Lagos State (Civil Procedure) Rules was considerered. The rule provides:
“14. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of the Court or a Judge sue or be sued, or may be authorised by the Court or a Judge in Chambers to defend any such cause or matter, on behalf or for the benefit of all persons so interested.”
Referring to this rule, Scott. L.J at page 475 said that before deciding in any particular case whether a representative order under it should be made in regard to defendants, it was necessary to consider two questions: (1) What is the cause of action? and (2) What is the precise class of potential defendants who are to be represented by the defendants on the record for the purpose of imposing liability on them if judgment is given for the plaintiff? He went further to say that the vital thing to remember was that judgment against representative defendants meant judgment against each individual person covered by the representation, adding:
“The reason why the position of all represented defendants must be the same as that of those who represent them is simply because that is the hypothesis on which alone such an order is authorized by the rule.”
In my view, if judgment for the reliefs sought cannot be properly and justifiably enforced against each and every member sough to be represented, then there is no common interest established.
It follows that an order for representative defendants will be inappropriate and wrong. The two issues of cause of action followed by the imposition of liability on each member of the class after judgment for the plaintiff must be considered together. It is impossible and clearly untenable, for example, to get a person who was in no way involved with the collection of money to ask him to render account of all monies collected by him. Rendering of account is one of the reliefs claimed by the present plaintiffs.
– What I have demonstrated is that the grounds of appeal do not prima facie show good cause why the defendants/applicants should be heard on appeal in this matter. That is one of the two requirements of Order 3, r.4(2) of the Court of Appeal Rules see Ibodo v. Enarofia (1980) 5-7 S.C. 42 at 51. It is in that same case it is laid down that relevant materials must accompany the application for leave to appeal, including the proposed grounds of appeal, “as will enable the Court to found on the substantiality of those grounds… in order to be able to decide on the matters in contest in the application.”: see pages 57-58. Obviously, the substantiality of the grounds of appeal is not determined by looking at those grounds in isolation no matter how proficiently they are couched. It cannot be decided reasonably properly under the pervasive attitude not to prejudge the merit of the appeal. Indeed, there can be no appeal and therefore no question of prejudging the merit of it if on a fair though cursory consideration of the proposed grounds of appeal against the background of the materials before the court they do not prima facie show good cause why the appeal should be heard. A court having a duty to so decide should not shy away from that conclusion.
I accordingly refuse leave in respect of prayers (i) to (v). Nothing has therefore been shown by the defendants/applicants why the case should not proceed in the court below. Even if the defendants/applicants were still to proceed on appeal, I would have notwithstanding seen no reason to order a stay of proceedings. Whether the defendants defend in a personal or representative capacity cannot affect the strength of the defence. It may only naturally create the ridiculous situation in which the plaintiffs will be made to seek reliefs from numerous persons they have no cause of action against and who they never intended to sue. To my mind that will be tantamount to a misapplication of a representative order to alter the grievance of the plaintiffs and frustrate their action.
I also refuse stay of proceedings as per prayer (vi) as there is certainly no basis for it and dismiss the application with costs of N1,000 in favour of the plaintiffs/respondents.
Application allowed
Appearances
Alhaji L.O. Okunnu SAN (With him, Miss L.A. Okunnu) For Appellant
AND
Ayo Olanrewaju For Respondent
