Saka Buraimoh & Ors V. Tunde Alejo (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Lead Ruling)

By a motion on notice dated the 23rd day March, 2011 and filed on the same day, the applicants: Alhaji Olatunde Akorede and Alhaji Rahaman Akorede, “for themselves and on behalf of Alhaji Yayi Akorede stock of Obagbuagun Family of Akure” are seeking the following relief, namely:

“1. An order joining the 1st and 2nd applicants as interested parties in the substantive appeal before this Honourable Court

2. An Order allowing the 1st and 2nd applicants to appeal against the judgment of the lower court as interested parties in the substantive appeal before this Honourable Court.
3. An order extending the time within which the 1st and 2nd Applicants may be allowed to file their notice of appeal in this case as interested party out of time.
4. Leave of court for the applicants to raise for the 1st time issue of non-suiting which did not form part of the judgment of the lower (sic) in view of the evidence before the trial court.”

The grounds for the application as set out in the motion paper, are:

1. The Applicants were not aware of the purported representative action initiated on their behalf by the plaintiff/appellant before the lower court.
2. The consent of the applicants were not sought and obtained before the appellant instituted the action at the lower court for and on behalf of Obagbuagun Family.
3. The 1st and 2nd Applicants’ family land at Ukere – Oke is distinct and separate from that of the

Plaintiff/Appellant.

4. The 1st and 2nd Applicants were never aware of the pendency of the matter at the lower court hence they could not join as a party at the lower court.
5. It was revealed at the lower court that the land at Ukere-Oke was owned by eleven different sub-families families (sic) that constituted Obagbuagan family who were not before the lower.
6. The 1st and 2nd Applicants are desirous and ready to pursue the appeal.
7. The Appellant/Plaintiff at the lower court only constitutes one branch out of the 11 families that owned the land at Ukere-Oke.
8. None of the remaining ten (10) families that owned the land at Ukere-Oke was informed nor carried along by the Plaintiff/Appellant when the matter was at the trial court.
9. The land in dispute has ceased to be family land as each of the sub-families that make up the larger Obagbuagan Family had surveyed their individual interest following the portioning of the land amongst the different sub-families that make the Obagbuagan Family.
10. That the Plaintiff/Appellant was aware of this fact, yet he went ahead to initiate the suit at the lower court in the name of Obagbuagan Family.
11. That it was when the Defendant/Respondent was disturbing the Applicants’ tenants on their own portion of the land that the Applicants became aware of the existence of the case at the lower court.
12. That the Defendant also encroached on the vacant plots of the Applicants’ family land.”

The motion is supported with an affidavit of 32 paragraphs deposed to by the 1st applicant – Alhaji Olatunde Akorede and tendered therewith are exhibits A and B – the judgment sought to be appealed against and the applicants’ proposed notice of appeal. The respondent – Tunde Alejo filed a counter affidavit of 12 paragraphs on the 1st day of June, 2011 and in reply thereto, the applicants filed a further affidavit of 26 paragraphs on the 22nd day of September, 2011. At the hearing of the motion, O. S. Adedeko, Esq., learned counsel for the applicants stated that the application was brought pursuant to sections 242(1) and 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 and Order 7 rules 2 and 10(1) of the Court of Appeal Rules, 2007 and argued that “the decision of the lower court has affected the rights of the applicants in respect of the subject matter”. On the meaning of “person interested’, learned counsel referred to A.G., Federation v. Manufacturers’ Association of Nigeria (2008) All FWLR (Pt.419) 524 at 534 -535. Learned counsel also relied on the case of Okonkwo v. U.B.A (2011) 10 SCM 64 at 71 and urged the Court to grant the application.

Prince A. A. Ojopagogo with Gideon Okpara, Esq., learned counsel for the appellant/ respondent did not oppose the application. The motion was, however, vehemently opposed by Biodun Fasakin Esq. with Abayomi Ale, Esq. and Miss Toyin Olowookere learned counsel for the respondent/respondent. Learned counsel argued that the application was incompetent and that the applicants did not disclose any sufficient interest. Learned counsel submitted that the applicants did not seek the trinity prayers as required by section 24 of the Court of Appeal Act and that relief 3 was, accordingly, incompetent. Counsel argued that if prayers 1 – 3 were refused, prayer 4 would fail.

In reply, learned counsel for the applicants argued that trinity prayers would apply to a situation where the appeal ab initio was not as of right, He contended that, in the instant application, the applicants were seeking to appeal against a final decision and that the only ground is to seek leave to appeal as an interested party under the Constitution.

I have examined the record of appeal in this matter. In the writ of summons in Suit No. AK/52/2002 taken out in the High Court of Ondo State, Akure Judicial Division, there were initially two (2) plaintiffs, namely: Alhaji Saliu Obagbuagun and Saka Buraimoh, who instituted the suit “for and on behalf of Obagbuagun Family”. The plaintiffs in the court below filed a statement of claim dated the 30th of April, 2002 but filed on the 2nd day of May, 2002 covering pages 4 – 5 of the record of appeal. By an amended statement of claim, spanning pages 20 – 21, only one plaintiff, the initial 2nd plaintiff – Saka Buraimoh, “for and on behalf of Ufimokun Family of Ukere Oke, Akure” claimed thus:

“WHEREOF the plaintiffs claim against the defendants jointly and severally as follows:

(a) A declaration that the plaintiff is entitled to Statutory Right of Occupancy in respect of parcel of land lying, being and situate at Ukere Oke off Akure/Idanre Road Akure, a place within the jurisdiction of this honorable court.

(b) N500,000.00 damages for the act of trespass committed and still being committed by the defendants on the said parcel of land.

(c) A perpetual injunction restraining the defendants, their agents, servants or privies from committing further act of trespass on the parcel of land.”

The amended statement of claim contains 16 paragraphs and the relief reproduced above. I have carefully examined the amended statement of claim and in no one of the paragraphs is reference made to “Obagbuagun Family of Akure” or “Alhaji Yayi Akorede” section thereof. The law is settled that an amended court process supersedes the original process. It has been held by the Supreme Court that “an amendment relates back to the date of the suit, process or document” – per Ogbuagu JSC in Shell Petroleum Development Company Limited v. Chief Tigbara Edamkue & Ors. (2009) 14 NWLR (Pt.1160) 1 at 25, para. C. See also the cases of Anambra State Environmental Sanitation Authority & Anor. V. Raymond Ekwenem (2009) 13 NWLR (Pt.1158) 410; Vulcan Gas Ltd. V. Gesellschaft Fur Industries Gasverwertung A.G. (G.I.V.) (2001) 9 NWLR (Pt.719) 610 and Oduwaiye v. Oresanya (1968) NMLR 430. See further the case of Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 170 at 186 – 187, paras. H – C where the Supreme Court elaborately discussed the effect of amended pleadings thus: