Oba Adeyinka Oyekan v. BP Nigeria Ltd. (1972)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
The appellant was the defendant in an action instituted in the High Court Lagos under the provisions of Order III, rule 9 of the Rules of Court applicable in that Court and placed on the “Undefended List”.
As on the writ, the claim against the appellant by the respondents, who were the plaintiffs in the High Court, was “for the sum of 7,205pounds (seven thousand, two hundred and five pounds), being money paid to the defendants by the plaintiffs in Lagos, on or about 9th September, 1965 as rent in respect of a lease of a parcel of land measuring 4,390 square feet situate at Great Bridge Street, Lagos the consideration for which has totally failed.”
The facts of the case are simple, the issues to be decided, and which were decided by the High Court, are circumscribed and the matter for consideration on appeal confined within a small compass.
As suggested by the writ, the claim is for a refund of part of money already paid by the plaintiffs to the defendant in respect of the lease of some lands which lease did not eventually turn out to be effective. As stated before, the action was placed on the Undefended List and by the combined provisions of Order III, Rules 9, 10, 11, 12 13 and 14, the defendant is required to file within the time prescribed a notice of intention to defend the action or, failing that, an affidavit setting out a substantial defence to the action and the judge is vested with the discretion to allow a defence to be filed or oral evidence to be given and indeed to enter judgment if such a course became necessary.
In this case, however, the defendant, now appellant, did not avail himself within the time stipulated of the provisions entitling him to file a defence and when leave was sought to do so out of time by learned counsel appearing for him, the application was refused by the learned trial judge. In the exercise of his discretion, however, the learned trial judge took and heard evidence concerning the claim of the plaintiffs and gave a judgment in the case. In the course of that judgment he observed as follows:
Now whether the property in dispute is family property or stool property I have no doubt that if the paramount chief or the family head entered into any contract or transaction with a third party in respect of the property, it is good law that he must purport to deal with the property in the particular capacity in which the land is entrusted to him as distinct from a capacity which assumes his individual ownership of the land.”
He then directed himself with respect to the contents of the deed of lease put in evidence and the designation of the defendant therein to the effect that although the defendant had been sued in the present action in his personal capacity, the deed of lease describes the defendant as the head of the Dosumu family. He observed further as follows:
“I have not been asked by Mr. Jibowu to amend the claim, and I am not at all sure that if I were so asked could be entitled so to do in view of what I have already said as to the conclusion that has arisen as to the capacity in which the land is owned as a result of previous cases.
The learned trial judge then ordered a non-suit stating that in doing so he was giving “both parties an opportunity to come to court again.”
This appeal is from that judgment and the complaint of the appellant is that the learned trial judge should not have non-suited the plaintiffs but instead should have dismissed their case. The plaintiffs on the other hand had filed a notice under the provisions of Order VII, rule 13 of the Rules of the Supreme Court to contend that the decision of the Court below be varied by entering judgment against the defendant for the amount of the claim together with costs.
It is pertinent at this stage to observe that at the hearing of the appeal the plaintiffs were neither present nor represented by counsel. We observe that the contention of the plaintiffs as on their notice, was that the judge should have given judgment in their favour and point out that if this were so it would have been desirable for them to file a cross-appeal if they be so advised rather than file a notice pursuant to the provisions of Order VII, rule 13 of the Rules of the Supreme Court. We refer in this connection to the observations of this Court in Ajayi v. Lagos City Council, S. C 74/68 decided on 25th September, 1970 and Lagos City Council v. Ogundemuren and Anor S.C 335/69 decided on 26th November, 1971 .
Be that as it may, as the plaintiffs were not present at the hearing, we propose to strike out the notice, which they had filed and we will at the end of this judgment make an order to that effect.
The only point as stated that arises for consideration is as to the propriety of an order of non-suit as ordered by the judge in the circumstances of this case. Learned counsel for the defendant had strongly urged on us the argument that as the judge had found that under no circumstances could the plaintiffs succeed against the defendant in the capacity in which he was sued, he should have dismissed the plaintiffs case. In maintaining this submission, learned counsel relied on the cases of Westgate v. Crowe [1908] 1 K. B. 24 (in particular the dictum of Philimore J. at p. 26) and S. Oragbaide v. Chief Onitiju [1962] 1 All N.L.R. 32 (especially the dictum of Bairamian F.J. at p. 38). In Westgate’s case the decision of the County Court was reversed because the County Court has ordered a non-suit when, as Philimore J. pointed out in the action taken by the plaintiffs therein “the defendants were not liable but that certain other persons, if any, were the parties responsible for the accident”. In Oragbaide’s case the Federal Supreme Court affirmed the order dismissing the plaintiff’s case because he had sued the defendant as representing the Ifetedo community when in fact there was no such community with the persons comprising such community “having the same interest in one cause or matter” but a collection of persons each having or holding separate parcels of land in individual capacities.
We do not agree with learned counsel for the defendant that the present case can be treated as if it were on all fours with the authorities which he had cited to us. The learned trial judge was dealing in the case in hand with an action which was not defended and in which all the evidence there was had proceeded from the other side of the plaintiffs. The learned trial judge decided to non-suit not because the defendant was the wrong person to sue but because he had not been sued in the proper capacity in which he should have been sued. It is not contended before us that the situation could not have been rectified by a simple amendment and indeed the learned trial judge considered this aspect of the case in the portion of his judgment, which we have quoted above. He however thought that he should not make an order of amendment since notice of this would have had to be served upon the defendant who in the present case had not been allowed to defend the action.
In all the circumstances of the case we do not think that it has been shown to us that the judge was wrong in taking the course, which he took of non-suiting the plaintiffs. After all, the defendant had not defended the case and there has been no injustice done him by the mere fact that the door was left open for the plaintiffs to start other proceedings if they are so advised.
The appeal fails and it must be dismissed and we make the following order:
(i) The appeal of the defendant herein is dismissed without costs;
(ii) The notice of intention to vary the judgment filed by the plaintiffs pursuant to Order VII, rule 13 of the Rules of the Supreme Court is struck out and also without costs.
Other Citation: (1972) LCN/1614(SC)
