Adenike Ogundahunsi & Ors V. Roland Olowookere & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.