Alhaji Chief Yekini Otapo V. Chief R.O. Sunmonu & Ors (1985)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.C.A.

This is an application by Prince Muraino Adebari for leave to appeal to the Supreme Court as a party interested against the judgment of this court delivered on the 21st of October, 1985. The grounds of the application are as follows:

“(1) That the Appellant/Applicant is a person aggrieved by the decision of this Honourable Court; and

(2) That the Appellant/Applicant is appealing on ground of mixed law and fact and by the provisions of Section 213(3) of the 1979 Constitution, leave of this honourable court is necessary.”

Exhibited to the motion paper are:

(a) A copy of the Notice of Appeal against the judgment of the High Court filed by the 1st – 6th defendants/respondents and marked Exhibit “DA.1.”

(b) A copy of the Notice of Appeal of the 7th-10th defendants/respondents against the judgment of the High Courts attached and marked Exhibit “DA.2.”

(c) A copy of the judgment of this honourable court delivered in this suit on the 21st of October, 1985 is exhibited as Exhibit “A”; and

(d) A copy of the Notice of Appeal against the said judgment is annexed and marked as Exhibit “B”.

Notice was also given in the motion paper that reference would be made in this application to the record of appeal used in this court during the hearing of the appeal. The learned trial Judge in the court below granted to the plaintiff, Alhaji Chief Otapo, the relief he claimed to wit:

(i) that the nomination, selection and appointment and approval of the 2nd defendant as the Olu of Agege are null and void and of no effect;

(ii) that the appointment of the 1st, 4th and 6th defendants as king makers of the Olu of Agege is null and void and of no effect; and

(iii) an injunction restraining the government and their agencies from installing or approving the installation of the 2nd defendant, Chief Jinadu Onilude, as the Olu of Agege.

It should be mentioned too that the plaintiff on record had claimed those reliefs “on behalf of himself and members of Isale Oja and Gbogunleri Section of Ogunji Adebari Otapo and Asunmoge Olu Chieftaincy families of Agege.” There arose an issue during the trial as to the authority of the plaintiff on record to represent the parties he purported to represent. On this the learned trial Judge held that the plaintiff was competent under Order 13 Rule 14 of the High Court of Lagos (Civil Procedure) Rules to maintain the action in the representative capacity in which he sued. Thereafter he entered judgment for the plaintiff, as I have stated. The defendants appealed. When the appeal came up before this court, the plaintiff on record, surprisingly, said he was not opposing the appeal. The applicant who now seeks leave to appeal as a party interested was one of those the plaintiff purported to represent. Thereafter, this Court in a summary judgment reversed the learned Judge’s decision on two grounds, namely:

(1) That the learned Judge was wrong to have held that under Order 13 Rule 14 of the Lagos State (Civil Procedure) Rules, the court can make a person to represent other people notwithstanding that no order has been applied for to that effect; and

(2) That the plaintiff had no locus standi in the action as the Declaration of the Olu of Agege Chieftaincy made no room for families but for quarters as persons entitled to provide candidacy for the Chieftaincy.

It is against that judgment that the appellant now seeks leave of court to appeal as a party interested. The six grounds of appeal sought to be argued if leave is granted are as follows:-

“1. That the learned Justices of Appeal erred in law in unilaterally amending the title of the suit to reflect only Alhaji Chief Yekini Otapo As respondent.

PARTICULARS OF ERROR

(1) The Order of Jinadu, J. that Alhaji Chief Yekini Otapo was suing for himself and on behalf of Isale-Oja-Gbogunleri Quarters subsisted until 21st October, 1985.

(2) There was no formal application for amendment of the title of the suit and counsel were not called upon to even address the court before the amendment was made.

2. The learned Justices of Appeal erred in law when they proceeded to hear the appeal on the 21st October, 1985 and to have ordered that the need to file briefs be dispensed with.

PARTICULARS OF ERROR

(1) That date (i.e. 21st October, 1985) was a date fixed unilaterally by counsel for 7th – 10th defendants/respondents in an application which was not served on the appellant or his counsel.

(2) No hearing notice was served on the plaintiffs/respondents or their counsel.

(3) The motion dated 14th October, 1985 and filed on 16th October, 1985 was not served on the plaintiffs/respondents or their counsel.

(4) Neither the appellant nor his counsel was heard on the 21st October, 1985 despite the fact that he was in court and his counsel evinced an intention to be heard.

(5) Neither appellant nor his counsel was heard on the propriety of dispensing with the need to file briefs when the order was made.

(6) The plaintiffs/respondents with the exception of Alhaji Chief Yekini Otapo did not back out of the appeal and did not authorize anyone to back out of the appeal on their behalf.

(7) Neither the plaintiffs/respondents nor their counsel were served with any notice that the Record of Appeal was ready for collection.

3. The learned Justices of Appeal erred in law when they held as follows:-

This appeal would be allowed on the two grounds Argued by learned counsel……………………………

The other ground for the allowance of this appeal and one which is important is that the respondent if even he represents those he claims to represent has no locus standi as the Declaration of the Olu of Agege made no room for families as person entitled to provide candidacy for the Chieftaincy.”

PARTICULARS OF ERROR

(1) This ground upon which the allowance of the appeal was based was not a ground of appeal before the Court of Appeal.

(2) The findings of the learned trial Judge which show clearly that it was the Isale-Oja Gbogunleri Quarters that sued were not challenged

(3) That Order enabling Alhaji Chief Yekini Otapo to sue in a representative capacity was still subsisting on 21st, 1985 and this shows that Alhaji Chief Yekini Otapo did not bring a personal action.

(4) There is no plaintiff/respondent in this appeal but plaintiff/respondents.

4. The learned Justices of Court of Appeal misdirected themselves in law when they held as follows:

“This appeal would be allowed on the two grounds argued by learned counsel. The minor ground being that the respondents who did not oppose this appeal, did not obtain the leave of the court to represent member of the Isale-Oja and Gbogunleri Section of Ogunji. Ade-Bari Otapo and Asunmoje Olu Chieftaincy Families. This point was made in the lower court but the learned Judge replied by a wholly unacceptable interpretation of Order 13 Rule 14 of the Lagos State High Court Rules in that notwithstanding that no Order has been asked for, the court can make a person to represent other peoples. This is not good law and ought to be rejected and is so rejected.”

PARTICULARS OF MISDIRECTION

(1) A trial court can justifiably enter judgment for or against a party in a representative capacity once the pleadings and evidence show conclusively a representative capacity and the case is fought throughout the proceeding in that capacity even if the amendment to reflect that capacity has not been applied for and obtained.

(2) No reasons were given why the learned trial Judge’s interpretation of Order 13 rule 14 is “wholly unacceptable.”

5. The learned trial Justices of Appeal erred in Law when they dismissed the plaintiffs/respondents’ claim after holding that the plaintiffs/respondents have no locus standi to sue when

(1) They ought to have struck out the claim even if no locus standi was shown (which is denied).

(2) The dismissal of the plaintiffs’ claims is contrary to the decision of the Supreme Court in Oloriode v. Oyebi (1984) 1 SCNLR 390.

6. The learned Justices of Court of Appeal erred in law in failing to give the appellant any hearing at the hearing of the appeal.

PARTICULARS OF ERROR

The denial of a hearing to the appellant who was a member of the Isale-Oja-Gbogunleri Quarters or section in spite of the unilateral withdrawal of the nominal plaintiff was contrary to Section 33(1) of the 1979 Constitution.

Now as this court held in Chief Emeka Odumegwu Ojukwu v. Military Governor of Lagos State and Ors. (1985) 2 NWLR (Pt.10) 806, leave will be granted to an applicant to appeal as a person interested if he satisfies the Court that he has sufficient interest in the matter and has substantial grounds of appeal. See also Akande v. General Electric Company & Ors. (1979) 3-4 SC 115; Maja v. Johnson (1951) 13 WACA 194; Mbanu v. Mbanu (1961) All NLR 652. Reading the grounds of appeal set out above from the background of the proceedings, both in this court and the court below, I cannot say that they are not substantial. Indeed none of the respondents’ counsel has submitted before us that the grounds of appeal are not substantial. Whether they will succeed on appeal or not is quite another matter, which is not relevant to my present consideration.

Most of the contests before us was as to whether or not the applicant has shown sufficient interest in the matter. For proper appreciation of this aspect of the application, it is necessary to set out paragraph 9-19 of the affidavit in support of the application. They deposed to the following facts:

“9. That before the appeals of the defendants/respondents were argued at the Court of Appeal Alhaji Chief Yekini Otapo who was merely a representative of the Isale-Oja Gbogunleri Quarters (The real Respondents in this appeal) purported to withdraw from the appeal.

10. That at no time did the plaintiffs/respondents authorize Alhaji Chief Yekini Otapo to withdraw from the appeal on their behalf.
11. That at no time did I, the candidate of the Isale Oja Gbogunleri Quarters mandate Alhaji Chief Yekini Otapo or anyone to withdraw from the appeal.
12. That Chief Alhaji Yekini Otapo was originally mandated by the Isale Oja Gbogunleri Quarters of Agege to sue for and on behalf of the quarters.
13. That on the 21st of October 1985, the appeal of the 7th to 10th defendants was argued and judgment was delivered by the Court of Appeal on that date in favour of all the defendants.
14. That my lawyers Messrs. Gani Fawehinmi & Co. informed me and I verily believe them that they were not served with all the processes of the Court in respect of the appeals in the Court of Appeal in respect of this suit except the Notices of appeal earlier mentioned in paragraphs 6 and 7 above.
15. That my lawyers informed me and I verily believe them that they were not served with any notice that the record of appeal was ready.
16. That my lawyers informed me and I verily believe them that they were not served with any hearing notice from the Court of Appeal in respect of the appeals.
17. That my lawyers informed me and I verily believe them that they were not served with a copy of the 7th to 10th Defendants’ application dated the 14th of October 1985 and filed on the 16th of October 1985 praying the Court of Appeal that

(1) Their counsel be allowed to argue the appeal on the 21st day of October, 1985; and

(2) The court should allow the appeal to be argued without filing briefs.

18. That my lawyers informed me that they first saw the said application in court on the 21st day of October, 1985.
19. That my counsel, O.A.R. Ogunde, Esq., was not allowed to say anything on my behalf in court on the 21st day of October, 1985.”

From the proceedings the applicant was one of the contestants to the stool. It was also averred in paragraphs 32, 34 and 36 of the amended statements of claim as follows:-

“32. On 1st January, 1982 the Isale-Oja and Gbogunleri Quarters met consequent upon the receipt of a letter dated 30th December, 1981 from the 7th Defendant inviting the aforementioned Quarters to submit the name of a candidate or candidates for the filling of the vacant stool of Olu of Agege Chieftaincy.

34. At the said meeting of 1st January, 1982, Mr. Muraino O. Adebari was selected as a candidate to be appointed and approved as the Olu of Agege. The minutes of the said meeting will be relied upon at the trial of this case.
35. By a letter dated 1st January 1982 the head of Isale-Oja and Gbogunleri Quarters forwarded the Selection of Mr. Muraino O. Adebari aforesaid as the next Olu of Agege to the Kingmakers for ratification.”

It does appear from these averments and the evidence called at the trial that the applicant was a candidate for Isale-Oja Gbogunleri Quarters in the contest for the chieftaincy stool. The applicant also gave evidence at the trial and asserted his rights to the stool. The evidence of the 3rd witness for the 7th to 10th defendants at the trial who was designated Council Manager to the stool shows that the applicant was selected by his family as the Olu of Agege. From all these, I am satisfied that the applicant has shown substantial interest in both the subject matter in litigation as well as the suit itself. Whether or not he is excluded by the Chieftaincy Declaration itself is a matter to be decided at the appeal. For one thing, one of the main complaints in this appeal would appear to be that he was not heard on the issue before it was decided against him. The scope of the judgment entered in the High Court no doubt includes other persons, rightly or wrongly. Those other persons include the applicant. In Mba Orie & Anor. v. Okpom Uba & Ors. (1976) 9 & 10 SC 123 the Supreme Court per Obaseki, J.S.C. held that the named defendants cannot complain against such defendants included in the scope of the judgment. In the instant case, the plaintiff on record who on his own showing and on the ruling of the learned Judge, rightly or wrongly was representing his interest threw in the towel only in this court after the case had been decided in his favour. It is only justice that the applicant should be given leave to appeal as a party interested.

I therefore grant the application of the applicant for leave to appeal against the judgment of this court delivered on the 21st of October, 1985, having regard to the nature of the grounds of appeal set out above and the circumstances of the case, particularly the fact that the appeal was not argued on the merits in this court when the respondent on record conceded the appeal, it is also fair that he should be granted leave to appeal on facts and mixed law and fact, and I hereby so grant the same. However, as it does appear from the materials before us that the installation of the second defendant to the chieftaincy stool has already taken place, there is nothing for me to stay. Leave to appeal as a party interested and upon the above grounds of appeal is therefore granted, but the application for stay of execution is dismissed. I make no order as to costs.

Other Citations: (1985) LCN/0014(CA)