Alhaji Jimoh Arowolo V. Jimoh Oluwole Akapo & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

By way of a motion on notice dated 19th July and filed on 27th July, 2005 the 1st respondent/applicant prayed this court for the following reliefs:

“An order that Chief Gafaru Arowolo be substituted as appellant in this suit for and on behalf of the Olaforikanre Ruling House of Itele in place of Alhaji Jimoh Arowolo now deceased.

And for such further and other order as the court may deem fit to make.”

On 19th June, 2006 when the motion came before this court for argument, learned counsel for the applicant, Professor A. B. Kasunmu, S.A.N. moved in terms of his motion which he submitted was brought pursuant to Order 8 rule 9(2) of the Supreme Court Rules which provides:

“If it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of rule 11 of this Order, be made in that behalf to the court below or to the court either by any existing party to the appeal or by any person who wishes to be added or substituted.”

Learned Senior Advocate supported his application with an 8 paragraph affidavit deposed to by one Taofiki Musa, salient among which are:

“1. That I am a member of the Abidogun Atele family.

2. That I am the Secretary of Abidogun Atele family.
3. That my family has been adjudged by the High Court of Justice, Sagamu and the Court of Appeal, Ibadan as the family that is competent to produce Onitele of Itele from Imidawo Branch, Osa Branch, Ogunrombi Branch and Alagbeji Branch.”

Learned Senior Advocate after adverting our attention to a copy of the Court of Appeal judgment attached to his application marked exhibit CC finally urged us to grant the applicant his application.

Learned counsel for the respondent Mr. Eghobamien in reply, submitted that the deceased was first sued in the High Court and with the death of the appellant, the case died.

Learned counsel for the 1st respondent after urging us to dismiss the application cited in support of his submission the cases of Mbanu v. Mbanu (1961) 2 SCNLR 305; (1961) All NLR 652 and Osanugha v. Military Governor of Ekiti State (2001) 18 W.R.N. 1; In Re: Adeosun (2001) 8 NWLR (Pt.714) 200 and urged us in conclusion to refuse the application.

In reply, learned counsel for the 1st respondent referred us first to a 14-paragraph counter-affidavit sworn to by one Mr. Monday Akapo, the relevant paragraphs in which he deposed as follows:

“(1) That I am a member of Adogun-Atele family and I have the authority of the 1st respondent to swear to this affidavit.

(2) That Alhaji Jimoh Arowolo was sued as a defendant in suit HCT/137/92 and defended the suit in that capacity and not in a representative capacity.