SULEIMAN ABDULLATEEF OMOKAYODE & ORS. V. ALHAJI WAHAB BOLAKALE LAWAL
(2011)LCN/4995(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of December, 2011
CA/IL/M.81/2010
RATIO
REPRESENTATIVE ACTION: WHETHER IN A REPRESENTATIVE ACTION THE NAMED AND UNNAMED PERSONS HAVE EQUAL RIGHT IN THE LITIGATION
First, in any representative action the named and unnamed persons have equal right in the litigation- – see Ibigbami and Another v. The Military Governor of Ekiti State and Others (2004) 4 NWLR (Pt. 863) at 274 – 275 thus: “It seems to me that the first point to be stressed is that it is indisputable that the plaintiffs instituted this action against the defendants/respondents in a representative capacity’ This suit was filed by the named plaintiffs for themselves and on behalf of Gbolokposo community who duly authorized them so to do. The second point that must be made is that in a representative action, both the named plaintiffs and/or defendants as the case may be and those they represent are parties to the action although the named representative plaintiffs and/or defendants are dominus litis until the suit is determined. And so, for the purpose of initiating any process in a representative action, such process must be by and in the name of the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncountermanded. See Atanda v. Olanrewaju (1989) 4 NWLR (Pt. 89) 394; Ede v. Nwidenyi, In re Ugadu (1988) 5 NWLR (Pt.93) 189 and Obi Okonji v. Geroge Njokanma (1989) 4 NWLR (Pt.114) 161 at 169. Put differently when an action is instituted in a representative capacity and/or against persons in a representative capacity, such action is not only by or against the named plaintiffs or defendants but also by and against those the named parties represent who are not stated nomine. Those represented, so long as the named parties are in court, are also deemed present at the trial of the action through their representatives. See Calgary & Medicine Hat Land Co. Ltd. (1908) 2 Ch. D. 652; Market and Co. Ltd. v. Knight Steamship Co. Ltd. (1910) 2 KB 1021 at 1039 and Barker v. Allanson (1937) 1 KB 463 at 475. They were present by representation and would be bound in law by whatever decision the court would give for or against their representatives. … Guided by the principle in the In Re: Otuedon case (supra), it is clear that applicant (Prince Adeyemi Ajibade) and all other members of the Serun ruling family are plaintiffs not stated nomine. The plaintiffs stated nomine are domini litis. The applicant with all those other members of the Serun ruling family whose authorization to the plaintiffs named on record was approved by the court, (See Exh. E) will be deemed present at the trial of the action through their representatives. He and all the other members of the Serun ruling family will be bound in law by whatever decision the court will give for or against their representatives.’ PER JOSEPH SHAGBAOH IKYEGH, J.C.A
REPRESENTATIVE ACTION: WHETHER A PARTY CAN SIMPLY CHALLENGE OR OPPOSE THE CAPACITY TO SUE IN A REPRESENTATIVE CAPACITY BY SIMPLE WORDS NOT BACKED WITH EVIDENCE OR PROOF; HOW AN OBJECTION TO A RIGHT TO SUE IN A REPRESENTATIVE ACTION SHOULD BE TAKEN
Second, the respondent did not also attack the competence of the representative action in the courts below, where such an objection rightly belonged or should have been taken, not in the appeal. And the objection must be based on substantial grounds which was not the case here see N.A.C.B. Ltd and Another v. Adeagbo (suing as representative of Samuel Adetoyi who now resides in the United States of America (USA) (2004) 14 NWLR (Pt. 894) 551 at 572, 584 – 585 thus: “It is not enough to simply challenge or oppose the capacity to sue in representative capacity by simple words not backed with evidence or proof. The opposer must present substantial proof of opposition which will deprive the plaintiff from suing in representative capacity. As I said earlier, in the instant case, in the writ of summons and statement of claim, the plaintiff clearly stated that he was suing in representative capacity and with the authority and consent of Mr. Samuel A. Adetoyi, The defendants/appellants did not file any statement of defence controverting such plea or but they merely challenged the plaintiff’s capacity without any proof. This is far from being sufficient. See Melifonwu v. Egbuyi (1982) 9 SC 145; Wiri v. Wttche (1980) 1-2 SC 1. … It seems to me and this is also settled that an objection to a right to sue (as in the instant case), should be taken, not at the trial, but by an interlocutory motion or summons. If such procedure is/was not adopted, the trial court or this court, ordinarily, should not entertain such an objection as it was a defence. See Nnamani & Ors. v. Chief Agbo (1972) 2 ECSLR 35 and Olugbusi v. Tunilase & Ors. (1973) 3 ECSLR 1054 and White Book 1970 page 296. Finally, in the case of Walter Wiri & Ors. V, Godwin Wuche (1980) 1 – 2 SC 1 (1980) 52 NSCC 1; Obaseki, JSC, had this to say, inter alia: “… the attitude of this court adopted in matters of this nature is not a rigid one, It depends on the facts and the circumstances of the case. If there is evidence that the parties appear to possess representative capacity and act or presumably act, on the authority of those they represent, this court does not and will not upset a judgment of the lower court merely on the bare objection of failure to obtain the approval of the court.” From the record of proceedings the contents of which, the court is entitled to look at and refer to it in consideration of any matter before it moreso as the said contents are binding on the court and the parties See Ogolo v. Fubara (2003) 11 NWLR (Pt. 831) 237, (2003) 5 SCNJ 142 at 765, I note that in paragraph 1 of the statement of claim at page 13 of the records, the respondent averred (unchallenged and uncontroverted) that with Mr. Adetoyi’s consent and authority, he sues the defendant/appellant. PER JOSEPH SHAGBAOH IKYEGH, J.C.A
GROUND OF APPEAL: WHETHER LEAVE OF THE COURT IS REQUIRED TO APPEAL AGAINST A FINAL DECISION OF A HIGH COURT THAT INVOLVES QUESTIONS OF LAW ALONE; EFFECT OF NOT OBTAINING THE LEAVE OF THE COURT TO RAISE A GROUND OF APPEAL OF FACTS OR MIXED LAW AND FACT
Taking the grounds of appeal on face value, no leave of the court should be required to appeal on them – see section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (1999 Constitution) thus: “An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:- (b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.” But the court is enjoined to look beyond the couching of the grounds of appeal to assure itself that they are really grounds of law alone or of mixed law and fact or of simpliciter – see B.A.S.F. Ltd. v. Faith Enterprises Ltd. (2010) 1 SCNJ 223 at 237 – 238 thus: “For this court to have jurisdiction to hear and determine an appeal before it, no leave is required where the grounds of appeal involves question of law alone and simpliciter. Where the questions involve facts or mixed law and fact, the leave of court must be first sought and obtained. In the later circumstance where the required leave is not obtained, the grounds of appeal would be incompetent and liable to be struck out. The court in Alhaji Tahir Maigoro v. Alhaji Jibrin Garba (1999) 7 – 15 S.C.N.J. 270 at 279 had clearly stated the law. The statement of Ejiwunmi, J.S.C. of blessed memory says: “it is therefore clear that the court has no jurisdiction to entertain an appeal on a ground of fact or of mixed law and fact unless of course, leave has been obtained. This point has been emphasized in a a number of recent decisions, it is enough to refer to only the following:- Obiwele v. Lagos State Development Property Corporation (1983) 5 S.C.; Olojuno v. Ozima (1985) 2 N.W.L.R. (Pt.6) 167 at 176 – 188; and Ogbechie & Ors. v. Gabriel Onochie (1986) 2 N.W.L.R. 484. One of the obvious results of the state of the law is that where an appellant’s grounds of appeal are only of facts or mixed law and fact, the grounds, and hence the appeal must be struck out and unless leave had been obtained, On the other hand, where no leave had been obtained and some of the grounds are of law and others are either facts or mixed law and facts, only those which are grounds of law are competent. All grounds of fact or mixed law and facts must be struck out.” As I had earlier pointed out, no leave was obtained before this appeal was filed, the question to be answered now is whether the three grounds of appeal in this case are grounds of law, or facts, and or of mixed law and facts? The court is required to examine thoroughly the grounds of appeal together with their particulars in order to see whether any of the grounds reveal a misunderstanding of the law by the lower court or a misapplication of the law of the facts already proved or admitted in which case it would be a question of law, Where, however the ground is such that would require questioning the evaluation of facts by the lower court before the application of the law, that would amount to question of mixed law and fact, Ground of appeal which raises facts which needed to be determined, either way, is a ground of fact.” See this court’s decision in the following cases: 1. Onifade v. Olayiwole (1990) 7 N.W.L.R. (Pt.161) 130 2. Olanrewaju v. Ogunleye [1997] N.W.L.R. (Pt, 485) 12 3. Shanu v. Afribank (Nig) Plc 2 W.R.N. 1 at 4. 4. Obatoyin v. Ejedike (1996) 4 S.C.N.. 249. The point must also be stressed here that the mere fact that an appellant describes a ground of appeal as of fact as ground of law would not necessarily render it to be so, the court would still inquire whether ground of appeal described as ground of law is actual for in fact a ground of law or of a mixed law and fact, and/or is of fact alone. See Ejiwunmi v. Costain (W.A.) Plc (1998) 12 N.W.L.R. (Pt.576) 149.” (My emphasis). PER JOSEPH SHAGBAOH IKYEGH, J.C.A
JUSTICES
TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
SULEIMAN ABDULLATEEF OMOKAYODE
ALLI YUSUF
ISIAKA YUSUF Appellant(s)
AND
ALHAJI WAHAB BOLAKALE LAWAL Respondent(s)
JOSEPH SHAGBAOH IKYEGH, J.C.A, (Delivering the Lead Ruling): The prayers in the motion paper are contained in paragraphs 1 – 6 thereof as follows:
1. AN ORDER of this Honorable Court allowing the appellants/applicants herein to serve as substitute or replacement for the formal lower Courts’ plaintiff/appellants, in prosecuting this appeal to its finality.
2. AN ORDER granting extension of time to seek leave of this court to appeal against the Judgment of the High Court of Kwara State sitting in its appellant session, delivered on 22nd January, 2010 by Hon. Justice A.O. Bamigboye.
3. AN ORDER of this Honourabte court granting leave to the Appellants/Applicants to appeal to the Court of Appeal, Ilorin against the said judgment of the High Court of Kwara State, sitting in its appellate session, delivered on 22nd January, 2010 on novel issue of jurisdiction, issues of fact simpliciter or mixed law and fact as contained in the herewith attached Notice of Appeal marked as Exhibit ‘A’.
4. AN ORDER extending the time within which the appellants can file their notice of appeal against the said judgment of the High Court of Kwara State.
5. AN ORDER deeming the notice of appeal herewith attached as properly filed and served; the necessary filing fees having been paid at the court’s Registry.
6. AN ORDER allowing the appellants’ appeal to this Honourable Court to be heard and determined on the bundle of documents assembled and/or compiled by the Registry of the court below.
And for such further order(s) as the court may deem fit to make in the circumstances.”
While the grounds upon which the prayers are sought are stated in the body of the motion paper as follows:
“GROUNDS FOR THE APPLICATION
1. The Appellants/Applicants need the leave of the Honourable Court to proceed on Appeal to the Court of Appeal pursuant to section 242 of the 1999 Nigeria Constitution.
2. The Appellants/Applicants seek to substitute or replace the Plaintiffs/Appellants, who prosecuted this case at the court below.
3. The Plaintiffs/Appellants had made similar application for leave of court to the court below which was never heard nor determined one way or the other.
4. The Appellants/Applicants are descendants of the land owning families of Sapati-Ile and Olokonla and are authorized to prosecute this appeal.
5. This application will ensure expeditious hearing and determination of the appeal.
6. It will be in interest of justice to grant this application.”
Two separate affidavits were deposed to in support of the motion. The first affidavit was sworn to on 7/10/2010 and filed on the same date accompanied the motion paper. Paragraphs 4 – 11 thereof deposed:
“4. That I was informed in chambers by my principal Barr. T.O.S. Gbadeyan mni on the 24h September, 2010 at 12.30p.m, and I verily believe him as follows:
(a) That the Plaintiffs/ Appellants at the Lower Court are no longer interested in prosecuting this appeal.
(b) That the Plaintiffs/Appellants at the Lower Court have been substituted or replaced by the Appellants/Applicants.
(c) That the Appellants/Applicants, being members of the land owning families Sapati-Ile and Olokonla herein, are now desirous of prosecuting this appeal having been authorized by the said land owning families.
5. That I know as a fact that the Plaintiffs/Appellants’ application for leave at the High Court, to proceed on appeal to the Court of Appeal, was filed on 24th day of March, 2010.
6. That I know as a fact that the Plaintiffs/Appellants’ application was neither heard nor determined by the High Court.
7. That I know by virtue of my position as a legal practitioner, that the Appellants/Applicants need the leave of this Honourable Court to come on appeal to this Honourable Court.
8. That we have prepared the Notice of Appeal in the chambers and a copy is herewith attached and marked as Exhibit ‘A’.
9. That copies of the said letters of Authority issued by the land owning families authorizing the Appellants/ Applicants to prosecute this appeal to its finality are herewith attached and marked as EXHIBIT ‘B’.
10. That the Record, of Appeal has been assembled and the said compiled Record is herewith attached and marked as EXHIBIT ‘C”
11. That granting this application will not prejudice the respondent in any way.”
The second affidavit deposed to on 11/11/2010 and filed on the same date made additional depositions in paragraphs 4 – 8 thereof as follows:
“4. That Isiaka Yahaya was not the person initially sued, for and on behalf of his land owning families of Sapati Oloko nla, but came into the matter at Omu Aran Upper Area court after the demise of one Alhaji Mustapha who was initially sued in a representative capacity as the defendant.
5. That I know as a fact arising from Supreme Court resolution of the dispute on Sapati Oloko nla in JIMOH GARUBA VS. ISIAKA YAHAYA (2007) 1 SC (PT.11) 262 AT 266 that Isiaka Yahaya, who was submitted, continue the matter in a representative capacity for and on behalf of land owning Families of Sapati Oloko Nla
6. That it was based upon the success of the land owning Families of Sapati Oloko Nla in JIMOH GARIJBA VS. ISIAKA YAHAYA (supra) that the land owning families mandated Him (Isiaka Yahaya) to continue his representation by Instituting this case against the trespassers represented by Alhaji Bolanke Lawal, the respondent herein.
7. That arising from the facts above, it is not surprising that Isiaka Yahaya or any other person from Sapati Oloko Nla Land owning families did not depose to any affidavit in Opposition to the grant of this application.
8. That it is rather surprising that it is the respondent, who knows nothing about the pre-action arrangement in Sapati Oloko Nla families that wrongfully deposed to such facts in his counter-affidavit. ”
In compliance with the order of the court allowing the parties to file written submissions upon their own request, the applicants through their learned counsel, Mr. Gbadeyan, filed a written address on 16/3/2011, followed by a reply written address on points of law. The applicants’ learned counsel adopted the written address and the reply on points of law at the hearing of the application on 15/11/2011. Two issues for determination were raised therein as follows:-
“1. Whether this Hohourable Court should exercise its discretion by granting leave to the Applicants herein to substitute the lower courts’ Plaintiffs/Appellants, and as such, prosecute this appeal to its finality upon the refusal of the said Plaintiffs/Appellants to so do; and in contravention of the wishes of the land owning families of Sapati-Ile Olokonla Community.
2. Whether this Honourable Court should exercise its discretion in favour of the appellants/Applicants by granting them leave to appeal against the decision of the lower court on the grounds of mixed fact and law simpliciter, and other ancillary reliefs in the application under consideration.”
The applicants, written case supplied the background to the motion that the land suit was fought in a representative capacity both at the trial upper Area Court Ganmo, Kwara State, and at the High Court of Justice of Kwara State sitting on appeal at Ilorin where Messrs. Abdurrahaman Alade and Mallam Isiaka Yahaya represented the Sapati – Ile Olokonla Community as Plaintiffs/Appellants; the present applicants are also members of the said community; the community lost the suit both in the trial Upper Area Court and in the appellate High Court; their two representatives filed an appeal at the court of Appeal, Ilorin Division, against the judgment of the appellate High Court, the community discovered the reluctance of their two accredited representatives to continue with the prosecution of the appeal; in order to keep the appeal alive and enable its due prosecution, the community authorized the present applicants to replace the previous two representatives as their representatives in the matter; the applicants are, accordingly, ready and prepared to prosecute the appeal, if granted leave to step into the place of the original representatives.
Pages 52, 59, 78 and 113 of the record of appeal (the record) were referred to in the written case of the applicants on issue 1 to contend that the action was litigated in the two courts below in a representative capacity for and on behalf of the land owning families of Sapati – Ile Olokonla Community including the unnamed applicants and, the said two representatives having shown lack of interest in pursuing the appeal in respect of the said litigation against the corporate wish of the community, the applicants as members of the community with interest in the subject-matter (land) of the dispute and duly authorized by the community to represent it should be allowed to represent the community and continue with the prosecution of the appeal following the cases of Okonji v. Njokanma (1989) 4 NWLR (Pt.114) 161 at 166 – 167, Re-Otuedon (1995) 4 NWLR (Pt.392) 655 at 667, Re Jaja (1995) 2 NWLR (Pt.375) 65 AT 86, Atanda v. Olanrewaju (1988) 4 NWLR (Pt.89) 394 at 402 and Re Egbe II (2002) 4 S.C. (Pt.2) 141 at 154 – 155.
It was submitted further on issue 1 that an unnamed party in a representative action such as the applicants has an independent right of appeal irrespective of whether the representative(s) do not intend to appeal the decision affecting the interest of the community in the litigation vide section 243(a) of the Constitution of the Federal Republic of Nigeria 1999, as amended, read with the case of Re- Eke (1999) 4 NWLR (Pt. 286) 176 at 185 – 187, therefore the court should give effect to the letter or written authorization given to the applicants by their community to carry on with the litigation for themselves and on behalf of their community.
It was submitted on issue 2 that some of the grounds of appeal intended to be canvassed in the appeal are of mixed law and facts requiring the leave of the court under section 242(1) of the 1999 Constitution before they may be entertained by the Court; that the applicants had earlier filed an application in the court below seeking for the said leave under Order 7 rule 4 of the Court of Appeal Rules, 2007 (now 2011) (Rules of the Court) which has not been heard to date, consequently the motion should be granted.
The respondent opposed the application. He caused three separate counter-affidavits to be filed in opposition to the motion. The first counter-affidavit deposed to on 19.10.2011 stated:
“(1) That I am the Respondent in this case.
(2) That by virtue of my position I am conversant with the fact of this case
(3) That I know as a fact that the case against me was filed by Adbulrahman Alade and Isiaka Yahaya
(4) That I know as a fact that the said Abdulrahman Alade and Isiaka Yahaya did not represent any family in the case.
(5) That I know as a fact that there is no subsisting Appeal against the Judgment of Lower Court before this court.
(6) That I know as a fact that Abdulrahman Alade and Isiaka Yahaya are still alive.
(7) That I know as a fact that the said Isiaka Yahaya and Abdulrahman Alade have told me that they are not interested in any appeal.
(8) That I know as a fact that Abdulrahman Alade and Isiaka had deposed to affidavit before this court that they are not interested in this appeal and that they had not instructed any person to represent or substitute them. The affidavit is attached and marked Exhibit A.
(9) That I know as a fact that the applicant herein are neither related to Abdulrahman Alade nor Isiaka Yahaya.
(10) That I know as a fact that I had no case against Sapati – Ile/Olokonla as Communities but Abdulrahman Alade and Isiaka Yahaya
(11) That I know as a fact that the Applicants herein are not only being meddlesome but fanning ember of discord between me and Abdulrahman Alade and Isiaka Yahaya who had realized the need to buy peace.
(12) That I know as fact that the applicants herein were alive and were much aware of the existence of this case both at the trial Area Court and the Appellate session of the High Court but chose to keep quiet.
(13) That it is in the interest of justice to refuse this application.’
A second affidavit titled “further counter-affidavit” deposed to on 7.12.2010, stated:
“1. That I am the Respondent in this case.
2. That by virtue of my position I am conversant with the fact of this case.
3. That I have carefully read the further affidavit in support of the motion.
4. That I know as a fact that the Supreme Court decision referred to in paragraph 5 of the further affidavit in support of the appellant/applicant’s application was initially between JIMOH GARUBA VS. TAFA LUFA,
5. That I also know as a fact that it was on the demise of Tafa Alufa that Isiaka Yahaya was substituted.
6. That I know as a fact that the disputed land in that case is different from the one in the instant case.
7. That I know as a fact that the disputed land in that case is the construction of an 8 room building without the approval of the plaintiff
8. That I know as a fact that the present action represents the inordinate ambition of the applicants to annex my village,
9. That the Judgment of the Upper Area Court Omu-aran which led to the Supreme Court Judgment cited by the applicant is attached herewith as Exhibit A1.”
Another counter-affidavit styled “Further and better counter affidavit” deposed to o1 23.3.2011, stated:
“1. That I am the Respondent in this case.
2. That by virtue of my position I am conversant with the fact of this case.
3. That I know as a fact that there is no land owning family in Sapati Ile.
4. That I know as a fact that ownership of Sapati Ile land is still subjudice.
5. That I also know as a fact that there is an action in the Upper Area Court between Sapati and Olokonla people where ownership of the land is being contested.
6. That the writ of summons in that case is attached as Exhibit B1.
7. That interlocutory appeal in respect of the matter mentioned above was decided on 28th May 2009 in appeal No CA/IL/43/2008.
8. That I know as a fact that the substantive case is still pending.’
The written address of the respondent settled by Mr. Olomu opened with the preliminary information that there was a land case over ownership of Abayawo land which started in the Upper Area Court Ganmo where the plaintiffs therein lost to the present respondent; the appeal by the said plaintiffs to the appellate High Court of Kwara State also ended against them; with their loss in the appellate High Court, the appellants reached amicable settlement of the dispute with the respondent, and the present applicants who were aware of the peaceful settlement of the dispute stood by only to bring the present application.
Submitting on the merits of the application, the respondent’s written address stated on issue 1 that there is no pending appeal to substitute the applicants for the appellants as the notice of appeal in pages 177 – 178 of the record does not bear the information that it was filed in the court below or in this Court, therefore the very foundation of the appeal is non-existent and no substitution of the appellants can be made in the circumstances vide the cases of F.B.N. V. T.S.A. Ind. Ltd (2007) All FWLR (Pt. 352) 1719, 1750 at 1751 and Manson V. H.E.S. (Nig) Ltd (2007) All FWLR (Pt. 358) 1067 at 1081.
Submitting further on issue 1, the respondent’s written address conceded the point that an unnamed party may be substituted for a named party in a representative action if the named party or representative “develops cold feet, falls out with the people he represents or when the latter suspects him of compromising their position,” but in all the cases cited by the applicants, unlike in the present case, there was a valid pending action to hoist the application for substitution; that a close look at the pages of the record harped upon by the applicants as disclosing the representative capacity of the action in the courts below showed it was only in page 59 of the record that counsel for the plaintiffs at the trial court described the plaintiffs as representing Sapati/Olokonla contrary to the personal capacity in which the action was commenced with the support of the community, not with the authorization of the plaintiffs, to sue on its behalf as the action was filed before Exhibit A issued as reflected in page 15 of the record.
The respondent submitted finally on issue 1 that assuming the action was conducted in a representative capacity, the representation terminated with the end of the case at the court below following the case of Okonii V. Njokanma (1989) 4 NWLR (Pt.114) 161 at 167; that the names of the persons that signed Exhibit A differ from those in Exhibit B; by the statement in page 15 of the record that “Each family consisting the town does not own land” it is a “fallacy” for Exhibit B to describe the persons mentioned therein as land owning families of the community, when the ownership of the Sapati – Olokonla community land is still subjudice or pending at the Upper Area Court 1 Ilorin between one Mallam Sulaiman Bolakale Abdulsalam and one Isiaka Yahaya together with one Sule Amao as shown in Exhibit B1, therefore one cannot add to a non existing thing as held in the case of Aderibigbe v. Abidoye (2009) 10 NWLR 592 at 618 – 619.
Arguing on issue II, the respondent’s written case stated that the applicants are complete strangers and cannot apply for prayers 2 – 5 of their motion paper (supra) as the trinity prayers under section 24 of the Court of Appeal Act and Order 7 rule 4 of the Rules of the Court under which the prayers are predicated can be deployed or utilized by only a party to the suit in the court below; further the affidavit evidence of the applicants did not disclose their interest in the matter, nor are the applicants aggrieved persons within the meaning of the term as held , in Societe Generale Bank v. Afekoro (1990) 7 SCNJ 171 at 185 and Ademola v. Shodipo (1992) 7 NWLR (Pt. 253) 251 at 261; that by the prayers on the motion paper which are binding on the parties vide Okoya v. Santili (1990) 3 SC (Pt, 11) 1 at 35, 37 – 38, the applicants who did not pray for leave to appeal as an interested party under section 243(a) of the 1999 Constitution cannot be treated as such; and that the information that the applicants are land owning families in Sapati – Ile in clauses B and C of paragraph 4 of the affidavit in support of the motion is hearsay having been derived from a person not a party to the action who did not disclose his source of information contrary to section 86 of the Evidence Act and the cases of Orunlola v. Adeloye (1995) 6 NWLR (Pt. 401) 338 at 353, Ojukwu v. Military Governor of Lagos State (1986) All NLR 233 at 250 and NIDB v. Fembo (Nig) Ltd. (1997) 2 NWLR (Pt. 489) 543 at 561.
The written reply on points of law dated 25.3.2011, but filed on 29.3.2011, submitted that four of the land owning families of the community signed both Exhibits A and B, also the ownership of the land by the Sapati – Ile community was settled by the Supreme Court in the case of Jimoh Garba V, Isiaka Yahaya (2007) 1 SC (Pt.2) 262 at 266. The applicants’ reply reiterated their position in the written address by repeating and replying on the cases cited therein to urge for the application to be granted on the added strength of Exhibit B, the written authority the members of the community gave to the applicants to represent them in the matter.
The first preliminary objection that there is no valid notice of appeal to substitute the applicants for the original appellants failed to acknowledge that pages 177 – 182 of the record contain the notice and grounds of appeal against the decision of the appellate High Court of Kwara State given on 22.1.2010 (see page 176 of the record for the date the judgment was signed). There is no application to set aside the notice of appeal on any ground. The record disclosed that the party mentioned as appellants – Abdulrahman Alade and Mallam Isiake Yahaya – filed two notices of intention to withdraw the appeal dated and filed on 15.10.2010. It is logical, in my view, that a party cannot apply to withdraw what does not exist. The objection that there is no valid pending appeal is accordingly farfetched in light of the position that the respondent did not file any formal application challenging the validity of the appeal and is hereby discountenanced.
Page 55 of the record contains part of the summary of the case in the trial court where that court stated inter-alia that:
“He (DW7) maintained that the 1st plaintiff families are farm labourers on the land …”
Page 59 of the record has the written address of the plaintiffs in the court of first instance dated 16.3.2009, which described them as suing “for themselves and on behalf of Sapati/Olokonla communities”. The written address of the defendant in the court of first instance dated 6.3.2009, signed by Mr. S.M.H. Kosemani (of Tunde Olomu and Co) for the defendant in that court also described the plaintiffs as suing for themselves and on behalf of Sapati/Olokonla communities (see pages 51 and 58 of the record). Then in page 78 of the record is the evidence of the PW5 (2nd plaintiff) who testified inter-alia that:
“I know the defendant in this case. We sue him because he encroached into our land without our consent and I and Magaji represent the community in this case. The name of the community I am representing is Sapati Olokonla. I have evidence to show that I am authorized by the community to represent them. The letter authorizing the PW5 to represent them was identified by PW5. It was identified by Defendant’s counsel and he raised no objection. The letter of authority was admitted and marked as Exhibit A1”.
Again page 113 of the record indicated the plaintiffs that lost in the court of first instance appealed to the court below “for themselves and on behalf of Sapati/Olokonla communities” and the appeal was argued as a representative action as such. The above instances establish, in my view, that both the action in the court of first instance and in the court below was litigated by the plaintiffs/appellants respectively in the said courts in a representative capacity. The argument that the action was not litigated by them in a representative capacity does not, in my considered opinion, hold ground and is hereby discountenanced. Paragraph 4(c) of the supporting affidavit of the applicants (supra) described them as “members of the land owning families Sapati – Ile and Olokonla.” The letter of authority attached to the application as Exhibit B states:
“We, the land owning families of Sapati-Ile/Olokonla hereby authorize the under signed persons to prosecute our matter at the Court of Appeal to its final conclusion,
1. Suleiman Adbullateef Omokayode .
2. Alli Yusuf
3. Isiaka Yusuf
NAMES OF THE FAMILY MEMBERS
1. Alh. Abdulrahman A. Sule Baale of Sapati-Ile, 2. Alh. Sule Amoo Asiwaju of Sapati-Ile, 3. Alh. Ibrahim Aweda – Bale Agba, 4. Alh. Saka Akanni Imman of Sapati-Ile, 5. Alhaia Sarat Atunbi – Sapati-Ile’, 6. Alh, Oba Aweda Olokonla
7. Alh. Kamori Nuhu – Chief Imman Sapati-Ile/Olokonla, 8. Mall. Ganiyu Abdulraheem Olokonla, 9. Alh. Dau’d Salaudeen Mufasir of Sapati-Ile Olokonla , 10. Alhaja Maimunai Sa|audeen Olokonla,’.
It is strange that the respondent who does not show affinity with the Sapati/Olokonla communities would oppose the application authorizing the applicants to replace the original representatives and continue with the litigation in the appeal. First, in any representative action the named and unnamed persons have equal right in the litigation- – see Ibigbami and Another v. The Military Governor of Ekiti State and Others (2004) 4 NWLR (Pt. 863) at 274 – 275 thus:
“It seems to me that the first point to be stressed is that it is indisputable that the plaintiffs instituted this action against the defendants/respondents in a representative capacity’ This suit was filed by the named plaintiffs for themselves and on behalf of Gbolokposo community who duly authorized them so to do. The second point that must be made is that in a representative action, both the named plaintiffs and/or defendants as the case may be and those they represent are parties to the action although the named representative plaintiffs and/or defendants are dominus litis until the suit is determined. And so, for the purpose of initiating any process in a representative action, such process must be by and in the name of the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncountermanded. See Atanda v. Olanrewaju (1989) 4 NWLR (Pt. 89) 394; Ede v. Nwidenyi, In re Ugadu (1988) 5 NWLR (Pt.93) 189 and Obi Okonji v. Geroge Njokanma (1989) 4 NWLR (Pt.114) 161 at 169. Put differently when an action is instituted in a representative capacity and/or against persons in a representative capacity, such action is not only by or against the named plaintiffs or defendants but also by and against those the named parties represent who are not stated nomine. Those represented, so long as the named parties are in court, are also deemed present at the trial of the action through their representatives. See Calgary & Medicine Hat Land Co. Ltd. (1908) 2 Ch. D. 652; Market and Co. Ltd. v. Knight Steamship Co. Ltd. (1910) 2 KB 1021 at 1039 and Barker v. Allanson (1937) 1 KB 463 at 475. They were present by representation and would be bound in law by whatever decision the court would give for or against their representatives.
… Guided by the principle in the In Re: Otuedon case (supra), it is clear that applicant (Prince Adeyemi Ajibade) and all other members of the Serun ruling family are plaintiffs not stated nomine. The plaintiffs stated nomine are domini litis. The applicant with all those other members of the Serun ruling family whose authorization to the plaintiffs named on record was approved by the court, (See Exh. E) will be deemed present at the trial of the action through their representatives. He and all the other members of the Serun ruling family will be bound in law by whatever decision the court will give for or against their representatives.’
Second, the respondent did not also attack the competence of the representative action in the courts below, where such an objection rightly belonged or should have been taken, not in the appeal. And the objection must be based on substantial grounds which was not the case here see N.A.C.B. Ltd and Another v. Adeagbo (suing as representative of Samuel Adetoyi who now resides in the United States of America (USA) (2004) 14 NWLR (Pt. 894) 551 at 572, 584 – 585 thus:
“It is not enough to simply challenge or oppose the capacity to sue in representative capacity by simple words not backed with evidence or proof. The opposer must present substantial proof of opposition which will deprive the plaintiff from suing in representative capacity. As I said earlier, in the instant case, in the writ of summons and statement of claim, the plaintiff clearly stated that he was suing in representative capacity and with the authority and consent of Mr. Samuel A. Adetoyi, The defendants/appellants did not file any statement of defence controverting such plea or but they merely challenged the plaintiff’s capacity without any proof. This is far from being sufficient. See Melifonwu v. Egbuyi (1982) 9 SC 145; Wiri v. Wttche (1980 1-2 SC 1.
… It seems to me and this is also settled that an objection to a right to sue (as in the instant case), should be taken, not at the trial, but by an interlocutory motion or summons. If such procedure is/was not adopted, the trial court or this court, ordinarily, should not entertain such an objection as it was a defence. See Nnamani & Ors. v. Chief Agbo (1972) 2 ECSLR 35 and Olugbusi v. Tunilase & Ors. (1973) 3 ECSLR 1054 and White Book 1970 page 296.
Finally, in the case of Walter Wiri & Ors. V, Godwin Wuche (1980) 1 – 2 SC 1 (1980) 52 NSCC 1; Obaseki, JSC, had this to say, inter alia:
“… the attitude of this court adopted in matters of this nature is not a rigid one, It depends on the facts and the circumstances of the case. If there is evidence that the parties appear to possess representative capacity and act or presumably act, on the authority of those they represent, this court does not and will not upset a judgment of the lower court merely on the bare objection of failure to obtain the approval of the court.”
From the record of proceedings the contents of which, the court is entitled to look at and refer to it in consideration of any matter before it moreso as the said contents are binding on the court and the parties See Ogolo v. Fubara (2003) 11 NWLR (Pt. 831) 237, (2003) 5 SCNJ 142 at 765, I note that in paragraph 1 of the statement of claim at page 13 of the records, the respondent averred (unchallenged and uncontroverted) that with Mr. Adetoyi’s consent and authority, he sues the defendant/appellant.”
Third, there is in addition the case of S.P.D.C.N. Ltd. V. Edamkue and Others (2009) 14 NWLR (Pt. 1160) 1 at 27 – 28, 30, where the Supreme Court held inter-alia thus:
“As regards evidence of any authorization from the two families or communities of the 1st and 3rd sets of plaintiffs/respondents to initiate the two suits on their behalves/behalf, I hold that the appellant has no locus standi to object to the said representation not being a member of those families or communities. It is settled that once the plaintiff/plaintiffs, expressed on a writ or statement of claim that the action was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or community to sue in that capacity, It is only a member of that group family or community who can dispute, intervene or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile for a defendant who is not one of those the plaintiff/plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect the defendant adversely. See the cases of Chief P’C, Anatogu & Ors. v. Attorney-General, East-Central State (1974) 4 ECSLR 36: (1976) 11 SC 109: Onyemuze & Ors. v. Okoli & Ors. (1973) 3 ECSLR 150; Alhaji/Chief Otapo & Ors. v. Chief Sunmonu & Ors. (1987) 2 NWLR (Pt. 58) 587 @ 603; (1987) 5 SCNJ 5 SCNJ 57; (1987) 2 NSCC Vol. 18 P.677 and Daniel Awudu & Anor v. Rautha Daniet & Anor (2005) 2 NWLR (Pt. 909) 199 @ 222 – 223 C.A, citing the cases of Anatogu v. Attorney-General, East Central State; Chief Otapo v. Sunmonu (supra) and Busari v. Oseni (1992) 4 NWLR (Pt.237) 557.
…His Lordships then concluded inter alia, thus;
“It is equally damaging for the defendant not being a member of the families or a member of the Baen or Duboro Community to come at this stage of the proceedings to challenge the proper representation of the plaintiffs after the plaintiffs have closed their case and the statement of defence had been filed, it will not serve the interest of justice at this stage of the proceedings to shut out the plaintiffs in these consolidated suits.” He proceeded to dismiss the application and called on the defence to open their case.”
From the state of the affidavit evidence (supra), it is certain that there is crisis of confidence and trust between the initial representatives of the applicants in the two courts below and the members of their communities with the compromising manner they are handling the progress of the appeal. Their reluctance and/or refusal to proceed with the appeal already filed by them is indicated by their two separate notices filed on 15.10.2010, for the withdrawal of the appeal. The applicants as unnamed parties in the appeal are, accordingly, entitled to replace them in the appeal – See Ejezie and Another V. Anuwu and Others (2008) 12 NWLR (Pt.1101) 446 at 475 – 476 thus:
“The appellants felt that the 1st, 2nd, 3rd and 6th defendants/respondent were acting beyond the scope of their mandate and that prompted their application for substitution. As stated earlier the application is supported by a resolution of members of the Umudike family which is exhibit “A” attached to the affidavit of the 1st applicant. In paragraph 7 of the affidavit deposed to by the 1st plaintiff/respondent he alleged that the said exhibit “A” is a forgery. No particulars of the forgery are given. In my consideration the assertion does not weaken the potency of that document. It is clear from all the circumstances that the mandate of the 1st, 2nd, 3rd and 6th plaintiffs/respondents from those they represent cannot be said to remain the same before their option for settlement with the defendants/respondents. Against this background I am inclined to the view of my learned brother, Oguntade, J,S.C,, the substitution sought be granted.” See also Bruce – Akumngio V. Harry (2001) FWLR (Pt. 61) 1641.
Mr. Gbadeyan for the applicants is, in my opinion, on strong wicket on prayer (1) of the motion paper (supra). I hereby grant it. The three applicants shall replace the original two appellants as appellants in the pending appeal. By way of consequential order, the processes of the court already filed shall reflect the order of substitution issued.
Prayers 2 and 3 of the motion paper on extension of time to appeal and for leave to appeal are hinged on Exhibit A, the notice and grounds of appeal attached to the motion paper. The grounds of appeal without their particulars read:
“1. ERROR IN LAW
The learned judges of the appellant High Court erred in law when they suo motu raised an issue of res judicata for consideration in their judgment and as a result interpreted the purport of Exhibits A2 – A5 in such a way that it engenders a miscarriage of justice.
2. ERROR IN IAW
The learned judges of the High Court erred in law when they held that the evidence of both parties and their witnesses were adequately evaluated by the trial Upper Area Court whereas the Upper Area Court merely referred to and treated its visit to locus in quo in just one line in page 10 of its judgment.
3. ERROR IN LAW
The learned judges of the appellate High Court erred in law when they held that the appellants have not demonstrated how the trial court failed in its evaluation of evidence let alone that such failure caused a miscarriage of justice to their case whereas evidence garnered from the entire cross-examination of DW1, DW2, DW3 were discountenanced and jettisoned by the trial court.
4. ERROR IN LAW.
The learned judges of the appellate High Court erred in law when they pronounced and affirmed the judgment of the Upper Area Court whereas the lower trial court had no jurisdiction to entertain the suit in the first place.
4. ERROR IN LAW
The learned judges of the appellate High Court erred in law when they affirmed the evolution of evidence style adopted by the trial court in fielding every manner of admitted evidence into the imaginary scale without determining the quality and subsequent weight to be attached to such evidence before them.”
The grounds of appeal (supra) are christened or styled “errors in law.” Taking the grounds of appeal on face value, no leave of the court should be required to appeal on them – see section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (1999 Constitution) thus:
“An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
But the court is enjoined to look beyond the couching of the grounds of appeal to assure itself that they are really grounds of law alone or of mixed law and fact or of simpliciter – see B.A.S.F. Ltd. v. Faith Enterprises Ltd. (2010) 1 SCNJ 223 at 237 – 238 thus:
“For this court to have jurisdiction to hear and determine an appeal before it, no leave is required where the grounds of appeal involves question of law alone and simpliciter. Where the questions involve facts or mixed law and fact, the leave of court must be first sought and obtained. In the later circumstance where the required leave is not obtained, the grounds of appeal would be incompetent and liable to be struck out. The court in Alhaji Tahir Maigoro v. Alhaji Jibrin Garba (1999) 7 – 15 S.C.N.J. 270 at 279 had clearly stated the law. The statement of Ejiwunmi, J.S.C. of blessed memory says:
“it is therefore clear that the court has no jurisdiction to entertain an appeal on a ground of fact or of mixed law and fact unless of course, leave has been obtained. This point has been emphasized in a a number of recent decisions, it is enough to refer to only the following:-
Obiwele v. Lagos State Development Property Corporation (1983) 5 S.C.; Olojuno v. Ozima (1985) 2 N.W.L.R. (Pt.6) 167 at 176 – 188; and Ogbechie & Ors. v. Gabriel Onochie (1986) 2 N.W.L.R. 484. One of the obvious results of the state of the law is that where an appellant’s grounds of appeal are only of facts or mixed law and fact, the grounds, and hence the appeal must be struck out and unless leave had been obtained, On the other hand, where no leave had been obtained and some of the grounds are of law and others are either facts or mixed law and facts, only those which are grounds of law are competent. All grounds of fact or mixed law and facts must be struck out.”
As I had earlier pointed out, no leave was obtained before this appeal was filed, the question to be answered now is whether the three grounds of appeal in this case are grounds of law, or facts, and or of mixed law and facts? The court is required to examine thoroughly the grounds of appeal together with their particulars in order to see whether any of the grounds reveal a misunderstanding of the law by the lower court or a misapplication of the law of the facts already proved or admitted in which case it would be a question of law, Where, however the ground is such that would require questioning the evaluation of facts by the lower court before the application of the law, that would amount to question of mixed law and fact, Ground of appeal which raises facts which needed to be determined, either way, is a ground of fact.” See this court’s decision in the following cases:
1. Onifade v. Olayiwole (1990) 7 N.W.L.R. (Pt.161) 130
2. Olanrewaju v. Ogunleye [1997] N.W.L.R. (Pt, 485) 12
3. Shanu v. Afribank (Nig) Plc 2 W.R.N. 1 at 4.
4. Obatoyin v. Ejedike (1996) 4 S.C.N.. 249.
The point must also be stressed here that the mere fact that an appellant describes a ground of appeal as of fact as ground of law would not necessarily render it to be so, the court would still inquire whether ground of appeal described as ground of law is actual for in fact) a ground of law or of a mixed law and fact, and/or is of fact alone. See Ejiwunmi v. Costain (W.A.) Plc (1998) 12 N.W.L.R. (Pt.576) 149.” (My emphasis).
Ground 1 (supra) although headed “error in law” does, in fact, complain in the particulars thereof of the evaluation of Exhibits and boundary marks for the resolution of the plea of res judicata which, in my considered view, is a question of mixed law and fact. Ground 2 (supra) headed “error in law” has its particulars on the complaint of evaluation of evidence which is an issue of mixed law and fact; Ground 3 (supra) labelled “error in law” disclosed in its particulars a complaint on non-evaluation of evidence which if evaluated might have drawn the weight of evidence to the applicants’ side showing it is a ground of mixed law and fact; Ground 4 (supra) on jurisdiction should be a question of law not requiring the leave of the Court for the applicants to appeal on it; Ground 5 (supra) tagged “error in law” has particulars complaining of evaluation of evidence, an issue of mixed law and fact.
Apart from ground 4 of the notice of appeal, the other grounds are on mixed law and fact. Right of appeal being a constitutional right, I do not find any viable reason to deny the applicants the said constitutional right. Accordingly, time is hereby extended to 14 days from today granting the applicants leave to appeal to the court grounds 1, 2, 3 and 5 of the notice of appeal and the said leave is also hereby granted – see Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484, Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392, Ojukwu v. Onyeador (1991) 7 NWLR (Pt. 203) 286 and Ogunlabi v. Oyewole (1992) 1 NWLR (Pt. 262) 729 at 681 – 82.
The order for extension of time to appeal in prayer 4 of the motion paper is also hereby granted to the applicants to appeal against the decision of the appellate High Court of Kwara State in case No. KWS/11A/09 (Coram – Bamigbola, Saleeman and Yusuf, JJ) delivered on 22.1.2010. The notice and grounds of appeal attached to the motion paper as Exhibit A cannot be deemed filed as prayed for in paragraph 5 of the motion paper, appropriate filing fees having not been shown to be paid for the deeming order. The applicants are accordingly given 14 days from today within which to file the notice and grounds of appeal in Exhibit A in the Registry of the Court.
The certified copy of the record of appeal attached to the motion paper as Exhibit C does not have the index and a statement giving the particulars of the case with the schedule of the fees paid as required by Order 8 rule 7(a) and (b) of the Court of Appeal Rules, 2011, therefore the record of appeal as compiled is not sufficient for the purpose of the appeal and prayer 6 of the motion paper (supra) to have the appeal heard and determined on it cannot be granted. It is hereby refused.
Applicants shall pay N10,000.00 costs to the respondent.
TIJJANI ABDULLAHI. J.C.A: I read in advance the lead ruling of my learned brother J.S Ikyegh, JCA just delivered. My lordship has admirably brought out and discussed at great details all the salient points that need to be discussed and resolved in this application. I adopt his reasoning and conclusions as mine. I abide by all the consequential orders contained in the lead ruling including order as to costs.
ITA G. MBABA J.C.A: The draft of the Ruling, just delivered, was given to me and I had the privilege of reading same ahead of time. I agree with all the reasoning and conclusions of my learned brother, J.S. Ikyegh JCA, which are well though-out and articulated. I have nothing to add, as I also allow the application
I abide by the order as to costs, stipulated in the read Ruling.
Appearances
Mr. T.O.S. GbadeyanFor Appellant
AND
Mr. T. OlomuFor Respondent
