ADENIKE OGUNDAHUNSI & ORS v. ROLAND OLOWOOKERE & ORS
(2013)LCN/6658(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of December, 2013
CA/EK/32/2013
RATIO
WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF PROCEEDINGS
It is settled law that the issue of jurisdiction can be raised at any stage of the proceedings up to the final determination of an Appeal by the Supreme Court. The trial Judge can himself raise it suo motu at any stage”
See: PAN ASIAN CO. LTD. v. N.I.C.O.N. (1982) 9 SC 1
TUKUR v. GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517. Per PAUL ADAMU GALINJE, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
ADENIKE OGUNDAHUNSI & ORS Appellant(s)
AND
ROLAND OLOWOOKERE & ORS Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): By a motion dated 27th January, 2011 and filed on the 4th of February, 2011, the 1st Respondent herein sought for an order striking out and/or dismissing the 1st and 2nd Plaintiffs’ case on the grounds that same constituted fraud and the court lacked jurisdiction to entertain same. The grounds upon which the application was brought were listed as follows: –
“1. The 1st and 2nd Plaintiffs have no locus standi to bring this suit.
2. The 1st and 2nd Plaintiffs’ case as constituted is based on fraud and misinterpretation of facts before this Honourable court.
3. The 1st defendant shall rely on all the processes already filed be (sic, by) the plaintiffs in this suit.”
The application was supported by a 12 Paragraphs affidavit deposed to by the 1st Appellant. Attached to the application are minutes of the meeting of the Elders and Chiefs of Araromi Obo which was held on the 29th December, 2010, and a writ of summons in suit No: HAD/13/2011.
The minutes of meeting which was recorded in Yoruba and translated into English Language were marked Exhibits ‘A’ and ‘A1’, while the writ of summons was marked Exhibit ‘B’. The Appellants who were Respondents to the application filed a 23 Paragraphs counter affidavit. The Respondents replied by filing a further and better affidavit of 9 Paragraphs and attached a letter from Araromi/Obo-Ekiti Development Association which was marked Exhibit ‘C’. Issues having been joined, the application was heard. In a reserved and considered ruling, Fowe J., granted the prayers of the 1st Respondent and struck out the suit filed by the Appellants. It is against this ruling that the Appellants have brought this appeal. Their notice of appeal at Pages 100 – 107, of the Record of Appeal dated and filed on the 10th December, 2012, contains five grounds of appeal.
Parties filed and exchanged briefs of argument. Appellants formulated three issues for determination of this appeal. They read as follows:-
“1. Whether the learned Judge of the lower court was not wrong to have granted the application of the 1st Respondent purportedly challenging the locus of the 1st and 2nd appellants to institute the action in a representative capacity premising his decision mainly on Exhibits ‘A’, ‘A1’, ‘B’ and ‘C’ attached to the application of the 1st Respondent and belief that the 1st and 2nd Appellants were just instituting the action in the year 2011 and when this Honourable court had dealt with issues of locus and concluded that the 1st and 2nd Appellants had locus, the decision which was not appealed against by the 1st Respondent.
2. Whether the learned Judge of the lower court was not wrong to have held that “the 1st Defendant/Respondent now taken the proper procedure to challenge the locus of the 1st and 2nd Plaintiffs/Appellants in the lower court on the reasonable order of the Court of Appeal by filing this motion in this suit” when no such order was made by this Honourable court.
3. Whether the learned Judge of the lower court was not wrong to have struck out the entire suit for lack of locus on the part of the 1st and 2nd Appellants when the 3rd Appellant who is also a plaintiff has different reliefs against the 2nd and 3rd Respondents.
Issue one is admittedly distilled from the 1st, 5th and 6th grounds of appeal while issue two (2) from the 4th ground of appeal and issue 3 from the 2nd and 3rd grounds of appeal.
The 1st, 2nd and 3rd Respondents adopted the issues formulated by the Appellants with little modifications. While the Appellants formulated their issues in the negative; the 1st and 2nd Respondents formulated theirs in the affirmative. The 3rd Respondent adopted the issues as formulated by the Appellants.
Before I consider the lengthy issues formulated by the Appellant, it is pertinent to set out in brief the facts of the case that culminated into this appeal.
On 28th October, 1991, Chief Simeon Ogundahunsi Balemo and Gabriel Olaoye Fatoki took out a writ of summons for themselves and on behalf of Araromi Obo Community in which they sought for a declaration that the 1st Plaintiff as the Chief Balemo is the head of Araromi Obo Community and not the 1st Respondent who is the Odolofin.
The Ado Local Government that is listed as 3rd Appellant herein set out claims that are totally different from the claims of Chief Simeon Ogundahunsi and Gabriel Olaoye Fatoki. Since its claims were different, it would have maintained a separate action, but it was listed as the 3rd claimant along with the first two claimants. This is however not the issue before this court. The claimants, by the order of the lower court amended their statement of claim. The order of amendment was challenged by the Respondents herein at the Court of Appeal. The appeal was heard, but before the delivery of the judgment, the 1st and 2nd plaintiffs died. An objection was raised by the 1st Respondent against the application to substitute the deceased persons with the present 1st and 2nd Appellants who are children of the deceased, on the ground that they do not possess locus standi to maintain this action. The Court overruled the objection on the basis that that objection would have been taken at the lower court, as the issue before it was the question of substitution. This Court granted the application for substitution and sent the case back to the High Court for trial.
Before the commencement of the trial, the 1st Respondent now brought an application challenging the locus standi of the 1st and 2nd Appellants. The ruling in that application is the subject of this appeal.
In his argument on issue one, Mr. Yakub Dauda, learned Counsel for the Appellants submitted that the 1st Respondent would have not granted his consent to the Appellants to sue in a representative capacity even if he was requested to do so, since the Appellants’ action was against him. Learned Counsel insisted that the lower court had no power to decide on issue of locus standi of the Appellants, since that issue was settled by the Court of Appeal in OGUNDAHUNSI (2008) ALL FWLR (Pt. 420) 671 and the 1st Respondent did not appeal against that decision. It is the contention of the learned Counsel that even if the lower court could decide the issue of locus standi, it was late in the day for the 1st Respondent to raise it now, since he did not raise it for over twenty years (20) when the matter was first instituted in 1991. According to the learned Counsel, having not challenged the locus of the original plaintiffs till their death, the current Appellants are substitutes for the original plaintiffs and as such, all the rights, interests, privilege and even liabilities of the original plaintiffs in respect of this case devolve on current Appellants and accordingly the unchallenged locus standi of the original plaintiffs devolve on them.
In a further argument, learned Counsel submitted that the 1st Respondent’s application that gave rise to this appeal is an abuse of court process since it sought to re-litigate a matter that has been settled at the Court of Appeal. In aid, learned Counsel cited the Supreme Court decision in ADIGUN v. THE SECRETARY, IWO LOCAL GOVERNMENT (1999) 8 NWLR (Pt. 613) 30 at 40 and ATOLAGBE v. AWUNI (1997) 9 NWLR (Pt. 522) 536 at 565, where Wali, JSC., castigated a Judge of Kaduna State High Court who refused to abide by the decision of the Court of Appeal in GAMBARI & ORS v. GAMBARI (1990) 5 NWLR (Pt. 152) and urge us to hold that the application which was granted at the lower court amounted to an abuse of court process. Still in argument, learned Counsel reproduced Paragraphs 4, 5, 6, 8 and 9 of the supporting affidavit to the 1st Respondent’s application and submitted that the ground and depositions in the affidavit in support quoted above put it beyond reasonable doubt the 1st Respondent based his application on the wrong impression that the 1st and 2nd Appellants are just instituting this action against him, whereas all they did was to enter into the shoes of the original deceased who instituted the action in 1991 and whose locus was never challenged by the 1st Respondent. Learned Counsel is insisting that 1st and 2nd Appellants did not file any suit as erroneously believed by the 1st Respondent and that, they only substituted the original plaintiffs.
Learned Counsel urged this court to reject Exhibits ‘A’ and ‘A1’ as they were made during the pendency of this case and are therefore not admissible. In aid, Section 83(3) of the Evidence Act 2011 and the decision in OWIE v. IGHIWI (2005) 5 NWLR (Pt. 917) 184 at 220 PARAGRAPHS A – B are cited. Learned Counsel says Exhibit ‘C’ suffers the same fate as it was made during the pendency of the suit initiated by the original plaintiffs. Learned Counsel urged this court to expunge these exhibits and upturn the decision of the lower court.
Finally, Learned Counsel urged this Court to resolve the 1st issue in favour of the Appellants and against the 1st Respondent.
Mr. Ajibola Aruleba, Learned Counsel for the 1st Respondent in his argument on issue one (1) submitted that the Appellants and the 1st Respondent are members of the same Community of Araromi-Obo Ekiti and they have the same origin and that the action instituted in 1991 by the original plaintiffs was instituted in a representative capacity for and on behalf of the entire Araromi Obo-Ekiti Community. Learned Counsel pointed out that members of Araromi Obo-Ekiti including Chiefs in the Community who are not parties to the case made a declaration with respect to this case as shown in Exhibit ‘C’. Learned Counsel therefore contends that the 1st and 2nd Appellants have no locus to sue in a representative capacity, even though they are juristic persons that can sue and be sued. According to the Learned Counsel, they can only sue on behalf of Araromi Obo-Ekiti Community only if they have consent of the Community. Learned Counsel further submitted on this issue that the issue of locus standi is a jurisdictional issue which can be raised at any time. In aid, the authority in AJAYI v. ADEBIYI (2012) 11 NWLR (Pt. 310) 137 at 202 PARAGRAPHS E – F is cited. Still in argument, Learned Counsel submitted that the learned trial Judge did not sit on a matter that has been decided by the Court of Appeal, and that the 1st Respondent’s application that gave rise to this appeal does not constitute an abuse of court process. Learned Counsel further submitted that on the face of Exhibits ‘A’ and ‘A1′, the Appellants had the responsibility to prove that they had the consent of Araromi Community to institute the suit as their suit on representative capacity was challenged by some of the people they claim to represent. In aid, Learned Counsel cited EJEZIE v. AWUWU (2008) 12 NWLR (Pt. 110) 446 at 471 PARAGRAPHS B – E; (2008) 34 NSCQLR 996. It is the contention of the Learned Counsel that the conditions precedent to the institution of an action in a representative capacity are absent in the suit instituted by the Appellants. In aid, learned Counsel cited H.K.S.F v. AJIBAWO (2008) 7 NWLR (Pt. 1087) 531 – 532 PARAGRAPH G-A; ADEDIRAN v. INTERLAND TRANSPORT LTD. (1991) 9 NWLR (Pt. 214) 155.
Finally, learned Counsel urged this court to hold that the trial Court made proper findings on the evidence of the parties.
Mr. Olayinka Esan, learned Counsel for the 2nd Respondent essentially adopted the submissions made on behalf of the first Respondent. Learned Counsel submitted that the matter raised in the 1st Respondent’s application to strike out the Appellants’ case was not settled at the Court of Appeal and that the Respondent had every right to question the authority of the Appellants to sue on behalf of the Community, since the Respondents are members of the Community which the Appellants said they were representing. In aid, Learned Counsel cited NWOKAFOR v. AGUNMADU (2009) 3 NWLR (Pt. 1129) 638 at 655.
Finally, Learned Counsel urged this Court to resolve the 1st issue against the Appellants.
Mr. Akpan, Learned Deputy Director of Civil Litigation, Ekiti State, who is also Learned Counsel for the 3rd Respondent, in his argument made submission that are similar to the submission made in favour of the 1st Respondent. According to him, it is the law that where there is challenge to the capacity and/or authority of the plaintiff to sue in a representative capacity and parties have joined issues in their pleadings, it is a matter to be resolved by the trial Judge, and where the capacity made out in the writ of summons is not proved at the hearing, the action fails. In aid, Learned Counsel cited UKATTA v. NDINAEZE (1997) 4 NWLR (Pt. 499) 251; ANABARONYE v. NWAKAIHE (1997) 1 NWLR (Pt. 482) 374 at 382 PARAGRAPHS E – F. Learned Counsel says that a representative action is not by force, and that when many members of the Community have said they did not authorize the Appellants to sue on their behalf, the Appellants should stop the action in a representative capacity. Learned Counsel referred this Court to the decision in IKPUKU v. IKPUKU (1991) 5 NWLR (Pt. 193) 571 at 583 PARAGRAPHS A – H, and contended that the learned trial Judge was magnanimous to have given the Appellants the chance of having their grievances determined on the merit by not dismissing the case.
Learned Counsel finally urged this Court to resolve the 1st issue against the Appellants and dismiss the Appeal.
The Appellants’ Learned Counsel filed reply briefs on 7th October, 2013, 24th October, 2013 and 7th October, 2013 in reaction to the 1st, 2nd and 3nd Respondents’ briefs of argument respectively. The 1st issue raised in the reply brief to the 1st Respondent’s brief of argument has to do with Exhibits ‘A’, ‘A1’, ‘B’ and ‘C’, which the learned Counsel says are inadmissible. This issue is not a new issue as the Appellants had sufficiently raised it in the Appellants’ brief of argument and what the 1st Respondent did was merely replying to the issues raised by the Appellants. The question of re-litigation as raised in the reply brief is also not new. The issues raised in the three reply briefs are clearly not new issues and this is contrary to Order 18 Rule 5 of the Court of Appeal Rules 2011 which provides that the Appellant may also, if necessary within fourteen (14) days of the service on him of the Respondents’ brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondents’ brief. The 1st Respondent in his brief of argument at Paragraph (n) stated as follows:-
“Hence the issue of locus standi on representative capacity is a jurisdictional mater and can be raised at anytime.”
In the Appellants’ reply brief at page 3 paragraph 2.07, Learned Counsel for the Appellant carefully removed the words locus standi and argued only on the basis of representative action, which he accused the 1st Respondent of stating that it is jurisdictional in nature.
If at all there are new issues in the Respondents’ brief which requires a reply from the Appellants’ Counsel, such new issues should not be doctored to suit the argument of the Appellants’ Counsel. By misrepresenting certain issues as raised by opponent’s Counsel is a disservice to legal practice which should not be allowed. Having found that there are no new issues raised by the Respondents which require the Appellants’ reply, I will now proceed to assess the submissions of the parties.
The first question that requires resolution by me is, whether the issue raised by the 1st Respondent in the application which is subject of this appeal had earlier been resolved by the Court of Appeal in RE: OGUNDAHUNSI (SUPRA).
This question calls into play the doctrine of judicial precedent, otherwise known as stare decisis which is well rooted in Nigerian jurisprudence. It is a well settled principle of judicial policy that lower courts are bound by the decisions of higher courts even where those decisions are erroneously given. The doctrine of precedence is fully entrenched in our jurisprudence in order to preserve certainty of law and practice, and a Judge who refuses to be bound by it is liable to be sanctioned for gross insubordination.
The issues for determination before the Court of Appeal, as found by the Learned trial Judge at page 93-94 of the record of this appeal are:
1. Whether based on the whole processes before this Honourable Court the applicants are eligible to substitute the deceased plaintiffs.
2. Whether the 4th respondent i.e. Rowland Ojo Olowookere, by his counter affidavit has satisfied this Honourable Court why the application must not be granted.
3. Whether the refusal of the Application will not prejudice the interlocutory appeal.
I do agree with the Learned trial Judge that by looking at the issues above, the Court of Appeal did not deal with the substantive appeal but dealt with the narrow issue of substitution of the 1st and 2nd plaintiffs. The ration decidendi in that application was the allowance of the substitution of the original Plaintiffs. The issue of locus standi of the appellants was only connected with the statement of claim that was still pending before the High Coutt, as the substantive matter had not been tried. The duty of a Lower Court is to apply the ratio decidendi of a case decided by an appellate or Higher Court whether it agrees with it or not. A Lower Court can only avoid the decision of a High Court where it is possible to distinguish the case from the case the Lower Court is dealing with. It is the principle of law upon which a particular case is decided that is binding. A statement made in passing by a Judge which is not necessary to the determination of the case in hand is not a ratio decidendi of the case, but an orbiter dictum and it has no binding effect for the purpose of the doctrine of judicial precedent.
See: NAB v. BARZI ENGINEERING (NIG.) LTD (1995) 8 NWLR (Pt. 413) 257, DALHATU v. TURAKI (2003) 15 NWLR (Pt. 843) 310. Whatever comment, the Court of Appeal made with respect to the locus standi of the Appellants, had no bearing on the application for substitution, as at that point what was required was whether the cause of action survived the deceased plaintiffs. The Court of Appeal, per AGUBE IN RE OGUNDAHUNSI (SUPRA) at PAGE 697 PARAGRAPHS E-F admitted that objection to the Locus standi of the Appellants was better raised at the Lower Court where the writ of summons and the statement of claim resided. This is what his Lordship said:
“There is no doubt that the defendants have the right to question the capacities and/or the plaintiffs authority to sue, but the defendants must raise the question by way of preliminary objection in the Lower Court when the case was first instituted. The 4th defendant has waited until the stage of this interlocutory appeal before challenging the locus of the suit by way of defence. I think this is an improper procedure adopted by the Learned Senior Advocate with due respect to him.”
It is therefore my firm view that the comments of the Court of Appeal on the issue of Locus Standi are obiter and same is not bound on the High Court. The only area the High Court cannot deliberate on is the issue of substitution of the Appellants for the initial Plaintiffs, an issue which has been decided by the Court of Appeal. The Application of the 1st Respondent which is the subject of this Appeal does not in any way constitute an abuse of the Court process.
Now, was the Court right in striking out the suit of the Appellants which was filed in 1991? One of the grounds upon which the 1st Respondent herein prayed for the dismissal, or striking out of the Appellants suit is that the said application constituted fraud. Learned Counsel for the 1st Respondent introduced in evidence the minutes of meeting of some prominent members of Ararami Obo Community who denied consenting to the suit of the Appellants which is Exhibit ‘A’. He also introduce Exhibits ‘B’ which is a writ of summons in a suit which the makers of Exhibit ‘A’ have instituted against the Appellants and finally Exhibit ‘C’ which is a letter written by Araromi Obo-Ekiti Development Association, dissociating themselves from the suit of the Appellants. Although Exhibit ‘B’ was discountenanced by the Lower Court, because it is not certified, all the Exhibit were introduced to contradict the Appellant’s suit which he claimed to have been brought for himself and on behalf of the Araromi Obo-Ekiti. Judging from Exhibits ‘A’, ‘A1’ and ‘C’, it is very clear that some members of Araromi Obo-Ekiti including the first Respondent did not authorize the Appellants to sue on their behalf. Can the failure of some members of Araromi Obo-Ekiti to authorize a representative action, render the Appellants’ suit fraudulent. I do not think so. This is so because fraud carries far much wider implication than impugning the truth or correctness of a document. At common law, its foundation is deceit of which the intention to mislead and a false representation are material. In equity it is infraction of fair hearing. See: OJIBAH v. OJIBAH (1991) 5 NWLR (Pt. 191) 296. Although the writ of summon and the Appellants’ statement of claim were not correct, in that not all the members of the Araromi Obo-Ekiti authorized them to sue on their behalf, there is no evidence to show that the Appellants deceived nor misrepresented any member of Araromi Obo-Ekiti to join him in bringing action against the Respondents. It is therefore my fervent view that there was no element of deceit or misrepresentation on the part of the Appellants and so I hold.
Exhibit ‘A’, ‘A1’ and ‘C’ do not fall under Section 83(3) of the Evidence Act and they are not documents that can be rejected as having been made during the pendency of a case.
There is no way the community could have denied being part of the suit that was not in existence. Exhibits ‘A’, ‘A1’ and ‘C’, are document challenging the Appellants’ assertion that they look action on behalf of the community and no more. They are therefore admissible.
It is also surprising to hear Learned Counsel for the Appellant urge the Court to hold that since the 1st Respondent had failed to challenge the locus of the original deceased plaintiffs who initiated/instituted the action in 1991, when he had the opportunity of doing so before their death, he could not be heard to challenge the locus of the 1st and 2nd Appellants who merely substituted the original deceased 1st and 2nd Plaintiffs and did not institute this action. This assertion is contrary to the admission by the Appellants at Page 3 Paragraph 2, of their brief, where they said:
“…….. the current Plaintiffs/Appellants are substitutes for the original Plaintiffs, and as such, all the rights, interest privileges and even liabilities of the original Plaintiffs in respect of this case devolved on current Plaintiffs/Applicants(sic) and accordingly the unchallenged locus standi of the original Plaintiffs devolved on them.”
This is funny. The Appellants are capable of inheriting those things that were on the ground only and these include the writ of summons and the statement of claim. How could they inherit ‘unchallenged’, a thing that was none existent as at the time they substituted their parents? In my view once a party substitutes an original party; all the processes filed by that original party become his. In the instant case, the Appellants herein have taken over the case of their deceased parents and are therefore rightly referred to as the ones that filed the suit in 1991.
The Application that gave rise to this appeal challenged the locus standi of the Appellants to sue on behalf of the Araromi-Obo Community. A challenge to locus standi of a party is a direct challenge to the jurisdiction of the Court seized with the matter in which that party appears.
In U.B.N. PLC v. NTUK (2003) 16 NWLR (Pt. 845) 183 at 205 PARAGRAPH H, this Court, per Thomas, JCA held as follows:
“The Supreme Court has in a number of cases stated that once the issue of locus standi of the Plaintiff/Respondent is raised, it must be considered first before any other issue.
Locus Standi touches the competence of the action and jurisdiction of the Court.”
Still in the same case, in the concurrent judgment of Olagunju, J.C.A. (as he then was) at page 217 Paragraph A-B, this Court held:
“On the face of the exposition the principle emerged that if a party lacks the capacity to institute an action there can be no jurisdiction on the part of the Court to entertain the action as the Court is vested with jurisdiction to hear action in which the parties are at issue.”
See: MOMOH v. OLOTU (1970) 1 ALL NLR 117, OREDOYIN v. AROWOLO (1989) 4 NWLR (Pt. 114) 172, (1989) 20 NSCC (Pt. 3) 64 at 72, THOMAS v. OLUFOSOYE (1984) 1 SCNLR 390.
In F.R.N. v. IFEGWU (2003) 15 NWLR (Pt. 842) 113 at 226 PARAGRAPHS F-G.
The Supreme Court, per Kutigi, JSC (as he then was) had this to say:
“The two questions above clearly challenge the jurisdiction of the Tribunal and Appeal Tribunal.
It is settled law that the issue of jurisdiction can be raised at any stage of the proceedings up to the final determination of an Appeal by the Supreme Court. The trial Judge can himself raise it suo motu at any stage”
See: PAN ASIAN CO. LTD. v. N.I.C.O.N. (1982) 9 SC 1
TUKUR v. GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517.
It is therefore clear from the decision of the Apex Court which I have made reference to, the 1st Respondent had not offended the law when he challenged the locus standi of the Appellants, since his challenge touched on the competence of the Appellants case, which in turn had direct bearing on the jurisdiction of the Court. In other words, such challenge that border on the jurisdiction of the Lower Court could be raised at any time even at the Supreme Court.
Was the Lower Court right when it struck out the Appellants suit? I do not think so. A representative action is seen and considered as an action brought by the body of persons represented rather than the named plaintiff only. In the instant case, the Appellants initiated their action at the Lower Court for themselves and on behalf of Araromi Obo Community. Members of the Community had shown through Exhibits ‘A’, ‘A1’ and ‘C’ that they did not authorize the Appellants to sue on their behalf.
Since Exhibits ‘A’, ‘A1’ and ‘C’ remained uncontradicted by the Appellants, the only option open to the Lower Court where the Community had successfully established that they did not consent to the action would have been to strike out the name of the Community from the suit. By suing in a representative capacity, the Appellants had clearly joined the community as co-plaintiffs to the action. The law is settled that where improper parties are struck out and there are living parties on both sides, the suit is not rendered in competent thereby as the living persons are capable of sustaining the action. See: IDANRE LOCAL GOVERNMENT v. GOVERNOR OF ONDO STATE (2010) 14 NWLR (Pt. 1214) at 525 – 526 PARAGRAPH H-A., GENERAL ELECTRIC CO. v. AKANDE (2010) 18 NWLR (Pt. 1225) 596 at 615 PARAGRAPH F.G. It is therefore my considered view that even if the Araromi Obo Community is struck out from the suit, the Appellants being parties to the suit at the Lower Court have every right to be heard. The Learned trial Judge was therefore in error when he shut out the Appellants by striking out their suit. From the reasons I have set out in this judgment, I am of the firm view that the 1st and 2nd Appellants do not possesses the locus standi to sue in a representative capacity. However they are entitled to maintain an action in their personal right and capacities.
With the resolution of arguments proffered by the parties in support of the 1st issue for determination, it is unnecessary to consider the 2nd and 3rd issues, since the issues raised thereat have been taking care of in my resolution of the 1st issue for determination. The appeal is allowed in part. The suit no: HAD/65/1991 which was struck out by the Lower Court shall be relisted for hearing between the 1st, 2nd and 3rd Appellants herein and the Respondent. The Araromi Obo-Ekiti Community is hereby struck out from the suit.
I make no order as to cost.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the preview of the lead judgment prepared by my learned brother, Paul Adamu Galinje, JCA. In the said lead judgment my learned brother, Galinje, JCA has meticulously, comprehensively and commendably well dealt with all the issues identified for the determination of the appeal. I adopt the reasoning as mine and endorse the conclusion as being in tandem with my viewpoints thereon. I abide by the consequential orders made in the said lead judgment, including the one regarding costs.
FATIMA OMORO AKINBAMI, J.C.A.: I have been obliged with a copy of the judgment just delivered by my learned brother Paul Adamu Galinje, JCA.
This appeal is against the Ruling of the Ekiti State High Court in which the learned trial Judge Fowe J., granted the application of the 1st Respondent challenging the locus standi of the 1st and 2nd Appellants to institute the action in a representative capacity. The learned trial Judge premised his decision mainly on Exhibits ‘A’, ‘B’, and ‘C’, attached to the application of the 1st Respondent.
The fulcrum on which this appeal is based is on the locus standi of the 1st and 2nd Appellants to institute this suit in a representative capacity.
The issues raised in this appeal were comprehensibly dealt with by my learned brother in the leading judgment. I agree with his reasoning and the conclusions arrived there at.
I also agree that the learned trial judge was in error to strike out the Appellants suit.
I also allow the appeal in part.
The suit No: HAD/65/1991 is restored back to the cause list for determination on the merit. I abide by the order as to costs.
Appearances
Mr. Yakub DaudaFor Appellant
AND
MR. S. A. Aruleba, with
A. O. Akande, Esq.,
Miss Bosede Adeobayemi and
D. O. Adebiyi – 1st Respondent
Mr. Olayinka Esan with
Abiodun Obawefa, Esq., and
Kayode Oluwasola – 2nd Respondent
Mrs. Yetunde Kolawole (SLO MOJ, EKITI STATE) – 3rd RespondentFor Respondent
