Sanni Kehinde (Mogaji Agunbiade) V Amole Ogunbunmi And Others (1967)

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BRETT, J.S.C.

The plaintiff sued in the High Court of Western Nigeria (Suit No. 1/207/1961) claiming a declaration of title to land and an injunction to restrain trespass. In the writ of summons dated the 3rd August, 1961 he is described as:-

“Sanni Kehinde (Mogaji Agunbiade for himself and on behalf of Agunbiade family).”

He obtained an order of the court authorising him to sue in a representative capacity, although 0.7, r.9 of the High Court (Civil Procedure) Rules which came into operation on the 1st November, 1958, makes this unnecessary: Oragbade v. Chief Onitiju [1962) 1 All N.L.R. 32,35.

Pleadings were ordered and delivered and on the 20th March, 1962, the case was listed for hearing in the High Court before Thomas J. The typed copy of the record of proceedings on that day reads as follows without showing where the submissions of counsel end and the judge’s ruling begins:-

“Idowu for plaintiff. Adisa for the defendants. Adisa refers to Order 26, rule 6(2) also Order 2, rule 2. Once the plaintiff who sues in a representative capacity is not present, he is caught by Order 26, rule 2.

It would be different If any other person has a power of attorney to appear. On the other hand the suit might be adjourned with costs. No averment In the Statement of Claim that plaintiff sues in a representative capacity Idowu :- I am asking the court for leave to add a paragraph (2)(b). Para. 2 will be para 2(a). Para 2b will read as follows:-

“That the plaintiff takes this action and sues in a representative capacity.”

Adisa:- I object to the amendment as it is vague. Idowu:- In view of the order made by this court that plaintiff is representing the family and it is not necessary to state the names of the people that he is representing. Plaintiff has compiled with Order 7, rule 9. I would like to make the following amendment and restate paragraph 2(b) as follows:-

“That the plaintiff takes this action and sues on behalf of himself and the Agunbiade family.”

This action has been taken by several members of the family and the absence of one of them is not fatal to this case. I will grant the amendment. But as counsel for the plaintiff has stated that he has no intention of calling Sanni Kehinde, the Mogaji of the Agunbiade family and as in the circumstances Adisa for the defendant has urged me to strike out the case as provided for by Order 26 (2). I will give a ruling however on the point. Costs in the cause. Adjourned to the 21st.”

On the following day the Judge gave judgment striking out the suit. He began by saying that counsel for the plaintiff had submitted that the plaintiff, suing in a representative capacity, did not have to testify personally and had given no reason why the plaintiff was not giving evidence and had not appeared in court. He then read paragraphs (1) and (2) of 0.26, r.6 of the High Court (Civil Procedure) Rules, which are in these terms:-

“(1)Where a cause on the list has been called, if neither party appears the court shall, unless it sees good reason to the contrary, strike the cause out of the cause list.

(2)If the plaintiff does not appear, the court shall unless it sees good reason to the contrary, strike out the cause (except as to any counter-claim by the defendant) and make such order as to costs in favour of any defendant appearing as seems just: Provided that if the defendant shall admit the cause of action to the full amount claimed, the court may if it thinks fit, give judgment as H the plaintiff had appeared.”