AFOLABI & ORS V. ADEKUNLE & ANOR.

• Pages: 398-409

AFOLABI & ORS V. ADEKUNLE & ANOR

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398

AFOLABI & ORS V. ADEKUNLE & ANOR

5

1.

JOSEPH AFOLABI

2.

TUNJI OGUNLEYE

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APPELLANTS

10 3. LAWANSON ARESA

V

1.

JOHN ADEKUNLE

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RESPONDENTS

2.

DUROJAIYE ADETORO

SUIT NO. SC 126/1982

15 SUPREME COURT OF NIGERIA

IRIKEFE,

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J.S.C.

BELLO,

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J.S.C.

IDIGBE,

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J.S.C.

OBASEKI,

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J.S.C.

20

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ANIAGOLU,

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J.S.C.

26th August, 1983

Practice and Procedure - Judgment - Consent judgment or order, nature of -

Need of element of violation - Trial judge deciding to either dismiss plaintiff's

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claim or enter non-suit and inviting counsel's address solely on those alternatives

- Concession by plaintiff to non-suit - Subsequent judgment entering non-suit

not a consent judgment - Amendment of writ of summons by appellate court.

Land Law - Claim by family head for declaration of title - Land in dispute

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admittedly family property

a

plaintiff's pleadings and evidence - Appeal court's

power in interest of justice to amend plaintiff's capacity in writ of summons

and enter judgment for plaintiff accordingly.

ISSUES:

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1. Whether an order for non-suit made by a trial judge with the consent of both

parties to an action, can be regarded as a consent judgment which deprives

both parties of the right to appeal from it without leave.

2. Whether an amendment made by the Federal Court of Appeal to the capacity

in which an action is brought can be regarded as an action

ex debito justitiae.

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3. Whether a conveyance of family property by a family head in his private capacity

is void

ab initio.

FACTS:

The first plaintiff, family head of Adekunle family, sold property to the 2nd plain-

tiff. The 3rd defendant sold same property to 1st defendant. The plaintiffs instituted

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an action. Both parties derived their title from the Ataoja of Oshogbo. At the trial

however, the court found as a fact that the land actually belonged to the 1st plain-

tiff and his family. But the court held that since the plaintiffs were suing in the wrong

capacity, judgment could not be given for them, neither could their writ be

amended by the court. The judge therefore sought the opinion of the counsels

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and non-suited the plaintiffs.

The plaintiff appealed to the Federal Court of Appeal, which having found that

the land belonged to the plaintiffs' family, amended the writ of summons altering

the capacity in which the plaintiffs' sued, and gave judgment for them, setting aside

the order for non-suit.