OBA ABDULAZEEZ SHOLA AGBOOLA v. BAALE AUDU
(2018)LCN/11911(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/IL/55/2017
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“Section 15 of the Court of Appeal Act does not possess the magical power of Open Sesame employed by the forty thieves in Chandlers Ali Baba and the Forty Thieves to open the fictional treasure cave at will in that iconic Arabian story. It is now settled that the power of an appellate Court to draw inferences of facts depends on whether findings of primary facts have, in the first place, been made by the trial Court or whether the evidence is capable of only one conclusion. Where the trial Court has not made any findings of fact (as in the instant case) or such findings as he made were upon an inadequate consideration of the oral evidence placed before him, or where conflicting evidence can only be resolved on the basis of credibility of witnesses, an appellate Court, including this one, cannot reasonably be expected to make primary findings of fact. In that case the appropriate order is retrial: Nnorodim v. Ezeani (2001) 84 LRCN 560 (Ayoola J.S.C., p. 572, Belgore, J.S.C. @ p.566, Iguh @ p. 567- 568). Evaluation of evidence is primarily the function of a trial Court: See Odofin v. Ayoola (1984) NSCC 711 @ 783 (Oputa J.S.C.). Put simply, this is not an appropriate case for this Court to resort to its powers under Section 15 of the Court of Appeal Act 2004.” PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
OBA ABDULAZEEZ SHOLA AGBOOLA
(Substituted for Alhaji Sanni Owolabi, Suing on behalf of Agbeku Community) – Appellant(s)
AND
BAALE AUDU
(Baale of Magbon for Magbon Community) – Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment):
Quite a number of years back, precisely 2002, Alhaji Sanni Owolabi, now deceased, in a representative capacity on behalf of his Agbeku Community, sued the respondent, whom he described as Baale of Magbon, on behalf of his Magbon Community, for a declaration that Agbeku Community are the customary owners of the parcel of land where respondents Magbon Community are farming and settled. He also sought orders (2) restraining Magbon Community from felling economic trees on the said land without the consent of Agbeku community, as well as (3) an order compelling Magbon Community to pay traditional gifts, otherwise called Isakole, as evidence of Magbon’s tenancy to Agbeku. In the alternative to the payment of Isakole, he sought an order for Magbon to vacate the said land. Agbeku Community’s case was that Magbon Community who are their tenants on the land had been lately engaging in acts inimical to their (Agbeku’s) ownership of the said land by indiscriminately felling economic trees therein, destroying farmlands belonging to Agbeku people and even claiming that the land no longer belonged to Agbeku community.
The respondent who was sued by the cognomen Baale Audu, and identified as Baale of Magbon (Baale meaning Village Head as used in the records) and as representing his Magbon Community, entered appearance to the suit by that same name Baale Audu, filed a statement of defence, sought and obtained leave of Court to amend it and even filed a counterclaim by that name. In his defence, Magbon Community through respondent challenged Late Owolabi’s authority from his Community and his standing to represent his Agbeku Community in instituting the action against it. It founded this challenge on a visit the new Oba (head) of Agbeku community was said to have paid Magbon Community while the suit was pending and labelled his action incompetent. Respondent also denied that there wasn’t anybody called Baale Audu in Magbon Community. As for the land in issue, it claimed it belonged to it and not Agbeku community.
Upon the commencement of the new High Court Rules of Kwara State in 2005 both parties filed witnesses statements and the case went to trial.
Late Owolabi called two witnesses, through whom he also tendered five documents as Exhibits 1, 2, 3, 4 and 5. Respondent also called two witnesses and a subpoenaed one. Through them he also tendered Exhibits 6, D1, D2 and D3.
In his judgment of 29th November, 2016, the trial judge, Abdulgafar, J., upheld respondents contention of late Owolabi’s lack of authority as representative of his community in instituting the suit and held it incompetent and struck it out without even any attempt at evaluating the evidence adduced on its merits. His Lordship also held the counterclaim incompetent, upholding respondents contention that there was nobody called Baale Audu in Magbon Community. His Lordship had this to say in striking out the claim:
The law is trite that a party must demonstrate on his pleadings his locus standi to institute the action and where he fails, the action becomes defective and incompetent. See Momoh v. Olotu (1970) NSCC 99. I have considered the evidence adduced on the issue and rather than demonstrate his locus standi vide authority to sue, what the evidence shows is that the plaintiff lacks authority of Agbeku Community to institute this action and the effect is that this action is incurably defective. See Oloriode v. Oyebi (1984) 1 SCNLR 390.
And on the counterclaim:
There is the counterclaim of the defendant which to all intents and purposes is a separate action. The case of the defendant both in the amended statement of defence and evidence is that the defendant is not Baale Audu and there is no Baale Audu in Magbon. The effect of this line of defence is that the counterclaim has not been authorized by Magbon Community since the community could not have conferred authority on a non-existent person. The Counterclaim is also defective and the same is struck out.”
Late Owolabi, dissatisfied with that judgment, lodged this appeal against it to this Court on seven grounds and framed the following four issues for determination:
1. Whether the learned trial Judge was right in holding that the appellant lacks locus standi to institute the action on behalf of his community
2. Whether the learned trial Judge was right in not considering the appellant’s objection to competence of the respondent’s evidence on record.
3. Whether the appellant is not entitled to his claims before the trial Court, based on the evidence on record.
4. Whether the findings of the trial Court that the defendant is not an existing person is borne out of the record.
Respondent distilled four similar issues as follows:
1. Whether from a careful and painstaking examination of this case as presented at the trial Court, the claimant does not lack the requisite locus standi to commence this suit.
2. Whether in view of the unassailability of the evidence adduced by the respondent on record, the trial Court was not right in refusing to uphold the objection of the appellant.
3. Whether on the merits, the appellant is entitled to his claims at the trial Court.
4. Whether the lower Court was not right in holding that the defendant was not an existing person, but wrongly struck out the counter-claim.
On issue 1, Mr. Kizito Oji for appellant relying on Bakare & Ors v Ajose Adeogun & 3 Ors (2014) 1 SC (PT. 11) 2 @ 33 – 34 argued that the only relevant document to be considered in deciding locus standi of a claimant is the statement of claim.
Counsel then referred us to paragraph 1 of the amended statement of claim where it was averred by Owolabi that:
“The Plaintiff is the representative of Agbeku community in the Ifelodun Local Government Area of Kwara State and he has the authority of Agbeku community to institute this Suit in a representative capacity on behalf of the Agbeku community.”
He argued that assuming, without conceding, that Owolabi did not even aver that the matter was on a representative capacity the trial Court ought to have considered the line of the evidence on record in pronouncing on the merits of the case one way or the other more so as it is crystal clear, he submitted that the evidence of appellants witnesses on the record shows that the suit was brought in a representative capacity.
Mr. Oji stressed that the trial judge was also wrong when he dismissed appellants argument against the procedure adopted by respondent in questioning his locus standi. Counsel submitted that contrary to His Lordships position, the records do not bear out his assertion that respondent on 27/11/2012 sought to raise the issue in limine and it was he Mr. Oji who suggested that all applications including that one be deferred to final address. There is nothing on the records to show that he made such a suggestion, if anything, he submitted, the records rather reveal that the case was actually adjourned from 13th October, 2012 to 18th December, 2012, thereby skipping the said 27/11/2012.
Mr. Oji also attacked the finding of the trial judge of the visit of the new Oba of Agbeku to Magbon and the offering of gifts he made, which His Lordship relied on for his finding that it was an admission that Late Owolabi lacked authority of his community to institute this action. Counsel submitted that there was no such admission by Owolabi (P.W.2) during cross examination. Counsel added that even if there was such admission, which he said is not conceded, it is not sufficient basis for concluding on such a vital issue as locus standi in a representative capacity. The purported visit by the Oba of Agbeku to Magbon Community is a traditional practice of any new Oba to visit his neighbouring communities, which has nothing to do with the issue of locus standi at hand, he added. Counsel relying on Sapo V Sunmonu (2010) 11 NWLR (PT. 1205) 374 submitted that the law is settled that while a head of family can take action to protect without prior consent of the other members of the family, any member of a family can take steps to protect or defend family property.
Relying on S.P.D.C.N. Ltd v. Edamkue (2009) 14 NWLR (PT. 1160) 1 @ 27 – 28, Mr. Oji next submitted that it is not the province of a defendant to challenge the authority of a claimant suing in representative capacity as respondent did in this case. Relying on Anatogu v. Attorney-General of East Central State (1974) 4 ECSLR 36; (1976) 11 S.C. 109 counsel submitted that the rule governing representative action is very permissive and not rigid contrary to the trial judges attitude to it. Learned counsel finally urged us to resolve this issue in favour of appellant.
On issue 2, Mr. Oji argued that the Court is duty-bound to resolve all issues canvassed by parties so Abdulgafar J., was bound to resolve appellants objection to the evidence of respondents witnesses which were based on witness depositions that were filed out of time and without order of Court allowing them to do so.
His Lordships failure rule one way or the other on it not only amounts to denial of fair hearing to appellant but also resulted in grave miscarriage of justice for which we should intervene, he submitted.
On issue 3, counsel argued that appellant by the evidence he adduced proved his claims and the trial judge was bound to evaluate it and enter judgment for him rather than rely on Late Owolabi’s said lack of standing to strike out the suit. In the face of that, counsel argued, this Court is vested with necessary powers by Section 15 of the Court of Appeal Act 2004 to assume jurisdiction and proceed to evaluate the evidence and enter judgment for appellant.
On issue 4, counsel submitted that the trial Courts finding that respondent was not an existing person is not borne out by the records. He said when the case was filed and served on the defendant he did not only brief a lawyer to appear for him but filed Memorandum of Appearance and Statement of Defence, amended his statement of defence and also added a Counter Claim, all in the name of Baale Audu, Baale of Magbon. Counsel also drew our attention to the fact that the same respondent also appeared personally in the case and was so recorded by the Court on 19/07/2004, 01/12/2004, 23/02/2005, 13/04/2005, 27/06/2005, 26/09/2005, 07/11/2005, 07/17/2005, 03/04/2006 and 14/06/2006. He also further referred us to the evidence of DW1 under cross-examination to the effect that the entire Magbon Community is aware of the case. Counsel wondered how such a person could suddenly become non-existent and submitted that parties cannot approbate and reprobate. He referred us to Ajayi v. Total Nig. Plc (2013) 15 NWLR (PT. 1378) 423 @ 540 and urged us to resolve this issue too in favour of appellant.
Mr. Adeola Omotunde for respondent supported the lower Courts holding that late Owolabi was not the representative of Agbeku Community and did not have its authority to institute this action on its behalf. Counsel said the new head of Agbeku Community visited Magbon after the filing of case and dissociated himself and Agbeku Community from it.
Counsel submitted that even the name Baale Audu by which appellant sued respondent only exists in the imagination of appellant. The respondents names, counsel then went to state in paragraph 4.3 of p. 5 of appellants brief of argument, are ALHAJI ABDUL-RAHEEM ZUBAIR. Nobody in Magbon he said bears the name Baale Audu. The Court has no jurisdiction to entertain a suit in the name of a non-existing person; that when a case is brought in such a name the Court is bound to dismiss or strike it out, for which counsel cited Obike Int’l Ltd v. Ayi Teletronics Ltd (2005) 15 NWLT (PT. 948) 362 @ 372 and Agbonmagbe Bank Ltd v. General Manager G.B. Ollivant (1961) ALL NLR 116.
Relying on Ilori v. Benson (2000) 4 FWLR (PT. 26) 1846 @ 1858 D-E and Oloriode & Ors Vs. Oyebi (1984) 5 S.C. Mr. Omotunde next submitted that even the interest claimed by late Owolabi in the land is not peculiar to him but what he only shares with his community and such cannot clothe him with a locus standi. He submitted that once it is found that a claimant lacks standing there is no need to consider whether he has a genuine case on the merits, for which he cited Re: Adetona (1994) 3 NWLR (Pt. 333) 482 @ 488. Where a claimant lacks standing, he continued, no cause of action can be disclosed and he Court will strike out the pleading and dismiss the case, he said citing Ojukwu v. Ojukwu (2002) 11 NWLR (PT. 677) 65.
The law, counsel said, imposes a duty on the claimant not to just casually say he is representing a group but state how he acquired the interest or how such interest has arisen in the subject matter of this action. Counsel cited Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt. 675) 31. 315. He submitted that late Owolabi failed to do that so his action was doomed to fail. Counsel branded the cases cited by appellant inapplicable and asked us to resolve this issue against him.
On Issue 2, Mr. Omotunde argued that the Rules of lower Court were not breached in any way by respondent regarding his witness statements as he had earlier on applied by a motion dated 12/06/2013 obtained leave to file list of witnesses, statement on oath of defendants witness and copies of documents to be relied upon at the trial. That application was moved and granted on 16/07/2013 without objection. There is no appeal against that ruling, he observed, and urged us to resolve this issue against appellant.
On issue 3, learned counsel said it is not true that appellant adduced cogent and sufficient evidence in proof of his case. Counsel submitted that the only feeble evidence adduced by appellant even crumbled under cross-examination. On the other hand, he went on, respondent proved his counterclaim and same ought to have been granted by the lower Court.
On issue 4, relating to the existence of the respondent as a juristic person, Mr. Omotunde referred us to paragraph 4 of respondents statement of defence where he averred that the defendant avers that he is not the person being sued, he does not bear the name Baale Audu and nobody bears that name in Magbon. Counsel said that averment was not controverted by the claimant. Counsel argued, too, that respondent upon service of processes only put up appearance out of respect and to define his position. Counsel concluded argument on issue 4 by submitting that the judgment of the lower Court dismissing respondents counterclaim was “faulty and unsustainable and ought to be set aside. This last prayer, I must pause to confess, is a big ask given that respondent has not cross-appealed against the said faulty and unsustainable judgment.
Appellant filed a Reply brief but only used it to re-argue and further elaborate on issues like parties being bound by the records and not allowed to approbate and reprobate, all of which he argued in his main brief of argument. Reply brief is the response of appellant to new points raised by the respondent; it is not a platform for re-argument of issues already argued.
RESOLUTION OF ISSUES
On issue 1 (of whether the learned trial judge was right on his decision that original plaintiff/appellant Alhaji Sanni Owolabi lacked locus standi to institute this action on behalf of his Agbeku community) I am unable to agree with the trial Judge on his decision that despite the clear averment of Alhaji Owolabi in paragraph 1 of his statement of claim that he is authorized by his Agbeku Community to institute this action against the respondent and nobody came from his community to dispute his authority, defendants/respondents who are not among those he purports to represent can challenge and that they successfully did so. I am also unable to agree with His Lordship that late Owolabi was not authorized by his community simply because he did not present to the Court a written authorization by his Agbeku Community. In paragraph 1 of his statement of claim Mr. Owolabi (now deceased) averred as follows:
The claimant is the representative of Agbeku Community in Ifelodun Local Government Area of Kwara State and has the authority of Agbeku community to institute this suit in a representative capacity on behalf of Agbeku Community.
It is now fairly well settled that not only is the proper procedure for challenging a person’s authority to represent a group in a suit is by way of a motion on notice in limine, it is also settled that only the persons a party claims to represent, and not his opponent, can question his authority. These are well settled by the cases of Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 149 at 168-169 and S.P.D.C.N. v. Edamkue (2009) 14 NWLR (PT. 1160) 1.
In Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 149 this position was stated by the apex Court (Uwaifo, JSC) at 168-169 as follows:
The grievance of the Ruling House in question showing how its right, have been infringed forms the foundation of the action. There is no basis on which the respondents can reasonably argue in this case that the facts averred by the appellants do not bear out their locus standi. The said Ruling House can in the circumstance, go to Court to contest the nomination. But it must be realized that the action so brought by them does not cease to be a representative action of the Afurukugboye Ruling House. The said Ruling House can contest what has been done by filing a representative action to protect its corporate interest. I imply nothing about the merit of such action. An action of that nature can only provoke the issue whether the appellants on record are actually acting on behalf of the Ruling House and with its authority as such. The way to resolve this is not to raise the issue of locus standi of those appellants on record in Court or ask them to show how their personal interests have been violated, as has been done here by the two Courts below. There is the averment in paragraph 4 that:
The plaintiffs have brought this suit with the consent and authority of the bonafide members of the Afurukeregboye Ruling House, on behalf of themselves and for and on behalf of the said ruling house.
But the way out may be to challenge the representative capacity claimed by the plaintiffs.
The law is that a person has the right to protect his family interest in or title to and can sue for himself and on behalf of the family in a representative capacity: see Sogunle vs. Akerele (1967) NWLR 58; NTA vs. Anigbo (1972) 5 S.C, 156; Melifonwu vs. Egbuji (1982) 9 S.C. 145; Atanda vs. Olanrewaju (1988) 4 NWLR (Pt. 89) 394. In the present case the plaintiffs have exercised that right by bringing this action. There must be proof of substantial opposition in order to deprive them of their representative capacity. This is done by motion and not by way of defence: see Russian Commercial and Industrial Bank vs. Comptour (1925) A – C. 112 at 130.”
In S.P.D.C.N. v. Edamkue (2009) 14 NWLR (PT. 1160) 1 @ 27 -28 the apex Court (Ogbuagu, J.S.C.) reconfirmed this position even more forcefully, saying:
As regards evidence of any authorization from the two families or community of the 1st and 3rd set of plaintiff/Respondent 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 the writ or statement of claim that the action is 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 of 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 the/those plaintiff/plaintiffs purports to represent, to challenge his/their said authority for, because if the plaintiff/plaintiffs case is dismissed, such dismissal can never affect the defendant adversely, see the case of Chief P.C Anatogu & Ors v Attorney-General, East Central State (1974) 4 ECSLR 36 (1976) 11 S.C 109.
In any event, assuming but without conceding that late Owolabi even lacked standing to bring the suit as a representative of his Agbeku community, his right to sue respondents as a member of Agbeku Community to defend and protect what he claims as his community land cannot be questioned. That point has long settled in Sogunle vs. Akerele (1967) NWLR 58 and religiously followed by a long line of cases to the effect that not just principal members of family or community but every member of a family/community has interest in family/community land and so under a duty to protect it and consequently standing to institute action in respect of any wrong or threat to such property. This is how it was said by the Supreme Court (Onyeama, J.S.C.) in Sogunle v. Akerele at p. 60:
There is authority for the view that a member of a family may take steps to protect family property or his interest in it, if he has not the authority of the family to bring the action the family would, of course, not be bound by the result, unless for some reason the family was estopped from denying that the action was binding.
In the present case the appellants are claiming land which the respondents say belonged to their family: it would be odd if as a result of an understanding between the appellants and certain members of the family the respondents could not protect family rights in the land because those members refused to authorize them. Some years down the line the same Supreme Court (Karibi-Whyte, J.S.C.) in Layinka v. Gegele (1993) 3 NWLR (283) 18 at 530 restated this principle thus:
I think the proposition that the validity of sale of land on behalf of the family can only be by the head of the family and the principal members, or voidable only by the principal members alone, see Ekpendu v. Erika (1959) SCNLR 186 cannot be extended to the challenge of actions against the interest of the family. See Sogunle v. Akerele (1967) NMLR 58.. Every member of the family has an interest in family property and is under a duty to protect such property. There is therefore a locus standi to institute an action in respect of wrong done to such a property.
More recently in Sapo vs. Sunmonu(2010) ALL FWLR (Pt. 531) 1408) at 1425 (Ogbuagu, JSC) again reconfirmed the law as stated above, saying:
A head of family can take action to protect family property or defend an action in respect of family property, even without the prior authority of other members of the family.
So also any member of the family may take steps to protect family property or his own interest in it. (Emphasis mine).
The trial judge was therefore under a duty to entertain and decide on the merits late Owolabi’s action to defend his community land and enter judgment at least in his personal capacity. That is where the submission of Mr. Oji that the rules of Court on representation are not rigid becomes relevant.
Let me also reconfirm here that the visit of the Oba of Agbeku to the respondents Magbon community with gifts, which fact the trial judge laid so much premium for his decision that late Owolabi as representative plaintiff was not authorized by his Agbeku community is also neither here nor there. In fact that finding was is a misdirection in so far as the said unnamed Oba was not even called and it was never said by even any of respondents witnesses that the Oba denied the late Owolabis authority to institute action on behalf of Agbeku community.
In the light of all the foregoing, especially the clear position of the law on the subject, I am in no doubt that the lower Court was in error in its decision that late Owolabi was not authorized by his community to institute this suit.
Interestingly too, following the demise of late Owolabi, the reigning Oba of Agbeku Community who is the present appellant on record applied by motion on notice to substitute and was granted leave by this Court, without opposition from the defendant/respondent, to substitute him in the appeal. In paragraphs 1, 2 and 5 of his affidavit sworn on 27/03/2018 in support of his motion the Oba of Agbeku confirmed the authority of his Agbeku community to late Owolabi to institute the action when he said as follows:
1. That I am the Present Oba of Agbeku community, as a result of which I am very conversant with the facts I herein depose to.
2. That I know as a fact that Alhaji Sanni Owolabi that has been representing the Community since 2002 the suit was instituted died on 1st January, 2018.
5. That after meeting with the Council of Chiefs it was agreed that I am to substitute the deceased, Late Sanni Owolabi who was representing the community because of his age and knowledge of our custom and tradition since the suit was instituted.
The defendant/respondent did not challenge these facts, which means he accepted them. He did not also oppose the application.
In the result, I resolve issue 1 in favour of appellant.
For reasons that shall soon become apparent, I shall skip issues 2 and 3 and proceed to issue 4 of both parties.
Issue 4:
I am afraid I am also in disagreement with the trial judge on his finding that the respondent who not only entered appearance to the suit as Baale Audu but took numerous steps in the suit including even filing a defence to it, seeking and obtaining an order under the same name to amend his said defence, repeatedly appeared physically before His Lordship under that name, filed a counterclaim with that name and even insists in this appeal that the lower Court was wrong in not entering judgment for him in that counterclaim so we should proceed to set aside that decision and enter judgment for him in his counterclaim is a non-existent person. Interestingly, the facts of this case are very much like that of Chief Jeoba v. Owonifari (1974) NSCC 402. In that case, the claimant/appellant sued the original defendant simply by his traditional Chieftaincy title of Oniran of Orin.
The said defendant, Oniran, entered appearance to the suit and defended it in that name until his death during the pendency of the proceedings and was substituted by his son. At final address stage counsel for defendant argued that the suit as originally constituted was incompetent because the original defendant was sued as Oniran of Orin, which he said was a non-juristic person. That argument found favour with the trial judge who went on to strike out the action albeit after making findings in favour of the plaintiff on the merits of the case. An appeal to the then Western State Court of Appeal by the plaintiff was dismissed. But that was how far the defendants luck ran, for on further appeal the Supreme Court not only overturned both decisions, describing them as make-believe, but even went on to suo motu make an order correcting the name of the original defendant from his chieftaincy title of Oniran of Orin to his given name and entered judgment for the plaintiff. Their Lordships in the judgment of the Court read by Fatai-Williams J.S.C. (later CJN) first said as follows at p. 406:
We think the learned trial Judge and the Western State Court of Appeal committed the grave jurisprudential error of stating that Chief Oniran of Orin cannot be sued because he is not a legal person.
It then went on to tackle the issue this way first at p.407:
The defendant was sued in a representative capacity and his son also defended the action in that capacity throughout. In the fact of all these facts, we think with respect, that by referring to the deceased defendant as a non-existent person, both the learned trial judge and the Western state Court of Appeal appeared to have been indulging in a flagrant from of make-believe.
It is manifest that the plaintiff sued the original defendant by the name he was generally known. Indeed, the record of proceedings shows that all the witnesses called by both sides referred to him as Oniran. The only occasion when his other name was used by the defendant himself is in an affidavit he swore to in support of a motion filed by him on 16th June, 1965. He described himself in the affidavit as Osanyinlusi, the Oniran of Orin. At the worst, the description of the original defendant by the plaintiff as the Oniran of Orin is a misnomer which could have been cured by amendment.
And after going through the relevant case law on the subject, including its previous decision in Olu of Warri v. Chief Sam Warri Esi (1958) 3 F.S.C. 94 where it had berated a trial judge for striking out rather than correct the clear misnomer in the name Olu of Warri by which the Olu as plaintiff sued by his title, Their Lordships went on to say/order as follows:
It must be recalled that, in the case in hand, the objection was raised on behalf of a defendant who, on the first occasion when the case was mentioned in Court was present as the Oniran of Orin, a name about which his counsel complained only after he (the defendant) had died and his son had been substituted for him with the consent of his counsel. Moreover, this son later testified that his father the original defendant, was the Oniran of Orin. Furthermore, as we had said earlier all those who testified at the proceedings referred to the original defendant as the Oniran of Orin. It is therefore not unlikely that he was known and referred to by two names, namely Osanyinlusi and Oniran of Orin .
It is our view, however, that even if he had found after hearing the belated objection raised at the close of the proceedings, that there was a misnomer, the learned trial judge, of his own motion and in the interest of justice, could and should have amended the title of the case and the pleadings to reflect the proper name of the original defendant, particularly as he was defending the action in a representative capacity.
Manifestly, the misnomer, if any has been rectified by the substitution of Osho Owonifari (the present defendant) for the Oniran of Orin. Nevertheless, mainly for record purpose, we hereby order that the name Chief Oniran of Orin shown earlier as that of the original defendant in the title of the writ and of the pleading should be amended to read Osanyinlusi, the Oniran of Orin. (Emphasis mine.)
See also Keystone Bank Plc v. James Ejembi Okefe (2014) LPELR -22633 (CA).
This Court has similar powers vested on it bySection 15 of the Court of Appeal Act 2004 and Order 11 Rule 11(1) and (2) of the Rules of the Court 2016 to effect necessary amendments in the interest of justice. See also Okeowo & Ors v. Migliore & Ors. (1979) N.S.C.C. 210 @ p. 238-239.
Here, like Chief Jeoba’s case, the defendant/respondent, who has not denied that he is Baale of Magbon as sued, with his own hand has thankfully revealed his identity in paragraph 4.3, p. 5 of his brief of argument saying The respondents names are ALHAJI ABDUL-RAHEEM ZUBAIR. In the light of that and in the interest of justice, it is hereby ORDERED that the defendant/respondents name in the writ of summons and all other processes so far filed in the suit both in the lower Court and here are amended to read ALHAJI ABDUL-RAHEEM ZUBAIR, Baale of Magbon for Magbon Community. His appellation of Baale of Magbon as endorsed on the processes, which office/title he has interestingly not denied shall be added to his name and as representative of Magbon for which he is sued.
I am afraid that is how far we can go in this matter given the trial Judge’s ill-advised decision to rest his entire decision on his belief of late Owolabis lack of standing and respondents non-existence. His Lordship ought to have heeded the exhortation of the Supreme Court to trial Judge’s and even this Court to decide all issues canvassed before them/us even when they/we are of the view that the case can be decided on a single or few issues, so as to avoid costly retrial orders. In Jeoba the trial judge despite his reasoning on the juristic personality of the original defendant still proceeded to evaluate the evidence on its merits and made findings which enabled the Supreme Court, after disagreeing with him on his holding on defendants existence as a juristic person, to assume jurisdiction on the merits of the case, enter judgment for plaintiff and save parties the agony of a retrial.
The trial in his case was not conducted on documents alone rather, a number of witnesses were paraded by both sides and cross-examined extensively before the trial judge. Issues of credibility are inevitable in that case so this Court cannot brazenly dabble into the case and give a decision one way or the other on evidence adduced by witnesses it never saw, as was urged on us by counsel. Useful as Section 15 of the Court of Appeal Act is in appropriate cases, it is not by any means a one-size-fits-all kind of provision.
Section 15 of the Court of Appeal Act does not possess the magical power of Open Sesame employed by the forty thieves in Chandlers Ali Baba and the Forty Thieves to open the fictional treasure cave at will in that iconic Arabian story. It is now settled that the power of an appellate Court to draw inferences of facts depends on whether findings of primary facts have, in the first place, been made by the trial Court or whether the evidence is capable of only one conclusion. Where the trial Court has not made any findings of fact (as in the instant case) or such findings as he made were upon an inadequate consideration of the oral evidence placed before him, or where conflicting evidence can only be resolved on the basis of credibility of witnesses, an appellate Court, including this one, cannot reasonably be expected to make primary findings of fact. In that case the appropriate order is retrial: Nnorodim v. Ezeani (2001) 84 LRCN 560 (Ayoola J.S.C., p. 572, Belgore, J.S.C. @ p.566, Iguh @ p. 567- 568). Evaluation of evidence is primarily the function of a trial Court: See Odofin v. Ayoola (1984) NSCC 711 @ 783 (Oputa J.S.C.).
Put simply, this is not an appropriate case for this Court to resort to its powers under Section 15 of the Court of Appeal Act 2004.
On that note, the appeal is allowed, the judgment of the lower Court set aside and the case ordered returned to the High Court of Kwara State for trial on its merit by another judge to be assigned by the Chief Judge of the State.
Having regard to the age of the case (a 2002 case), it is also ordered that the retrial be given accelerated hearing in the strictest sense of the word.
Costs of this appeal is assessed at 100, 000 in favour of the appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had the opportunity of reading the draft of the lead Judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA. I agree with the reasoning and conclusions therein. I also allow the Appeal and abide with Order of retrial of the case. I also abide with the Order as to Costs.
HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO JCA, was made available to me in draft. Having also studied the record of appeal, I wholly agree with the reasoning and conclusion in the lead judgment to the inevitable conclusion that this appeal be allowed. I also agree with the resultant orders made in the lead judgment including the order as to costs.
Appearances:
Kizito Oji Esq. with him, Abdulazeez A. Daibu Esq. and A. Onifade Esq. For Appellant(s)
Isreal Eso, Esq. For Respondent(s)
