Dr. O. O. Sofolahan & Anor V. Chief Mrs. L. I. Fowler & Anor (2002)
LAWGLOBAL HUB Lead Judgment Report
I. KATSINA-ALU, J.S.C.
This appeal is from a judgment of the Court of Appeal (Lagos Division) delivered on the 11th day of December, 1996. The court declared the action instituted by the appellants as incompetent and struck it out. The appellants have now appealed to this court, raising five issues for determination as follows:
“1. Whether the appellants had the requisite locus standi to institute proceedings against the respondents
- Whether the appellants followed the proper practice and procedure in suing as next friends in the Lagos High Court.
- Whether the Federal Attorney-General is the only person able to properly institute an action as contained in the claims before the Lagos State High Court
- Whether the Court of Appeal, could properly make a determination of the nature of the trust of the 2nd respondent and the nature of the contract of education on an interlocutory appeal.
- Whether the court of first instance could properly grant an order for interim injunction during the hearing of motion on notice for interlocutory injunction on the facts before the court.”
I shall endeavour to deal with issues 1,2 and 3 together. The resolution of those issues will determine whether there is need to go into issues 4 and 5. But first let me state the relevant facts of this case. The facts which led to this appeal are a bit complex but I find that the court below lucidly narrated them. I shall have to rely on those facts as they appear in the transcript. On 2nd August, 1995, the plaintiffs/respondents took out a writ of summons against the defendants at the High Court of Lagos. Following that, the plaintiffs/respondents (to whom I shall refer hereinafter as the appellants) obtained an ex-parte order of interim injunction made by Alabi, J., against the defendants/respondents (to whom I shall refer hereinafter as the respondents) on 9th August, 1995, restraining the respondents from ‘intimidating, harassing, expelling or threatening to expel or in any way victimising and/or disturbing or interfering with any of the pupils of Corona Nursery/Primary School, Gbagada from academic and/or extra-curriculum activities of Corona School or disturbing the legal rights, ingress and egress of the parents of the children of Corona School, particularly members of the PTA pending the determination of the motion on notice.”
Leave was granted to the appellants to sue as next friends of their wards. Leave was also given to them to “sue for and on behalf of the class of parents of Corona Nursery/Primary Schools at Apapa, Gbagada/Victoria Island/Ikoyi who oppose the arbitrary increase in fees and the management and maladiministration of trust funds.” These orders were made in line with five out of six prayers sought for in the motion ex-parte. The other prayer to restrain the respondent from increasing the school fees of N13,600.00 and N21,500.00 payable by Corona Nursery School pupils respectively a session for the 1995/96 session was adjourned to be heard later inter partes.
In the affidavit relied on by the appellants in support of their ex parte motion, the following facts were disclosed:
(a) A decision was reached at the meeting of parents of pupils of Corona Schools to challenge the schools authorities in their way of management of the schools and the arbitrary increase of school fees.
(b) Corona schools are run as charitable educational institutions upon trust which was created by the constitution of the Corona Schools Trust Council (CSTC or Trust Council) to provide qualitative education on a non profit making scheme.
(c) The accounts of the trust are not managed with diligence, efficiency and probity and the trustees have failed in the fiduciary duty of care entrusted to them through prudent investment of funds and assets of the trust council.
(d) The fees and other income rose sharply from N26,150,090 in 1993, with a surplus of N7,106,240 to N48,346,627 in 1994 with a surplus of N11,142,813.
(e) The trustees have failed to submit audited accounts by a reputable firm of accountants to members of the Parent/Teacher Association (PTA) despite numerous requests.
(f) The proposed increase in school fees for the 1995 session from N13,600 to N33,500 and from N21,500 to N41,500 per pupil for the nursery and primary schools respectively cannot be afforded by the pupils and if the increase are effected, the pupils will be constrained to leave the schools with irreparable damage to them.
(g) The appellants (now respondents) are contemplating an action to dissolve or wind-up the 2nd appellant (now 2nd respondent) “since it is not being run in accordance with the provisions and intendment of the law and the trust” and if this dissolution is carried out it will not be in the interest of the pupils of the Corona schools or of those who wish the schools well.
The reliefs sought in the substantive suit were stated in the writ of summons as follows:
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