AKINTUNDE V. OYEDOYIN & ORS.

• Pages: 65-68

AKINTUNDE V. OYEDOYIN & ORS.

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65

AKINTUNDE V. OYEDOYIN & ORS.

5

1.

CALEB AKINTUNDE

2.

DEJI AKINTUNDE

10

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Substituted by

LAWANI OLADIPO AKINTUNDE

Court Order of 1/6/61

V

1. SALAMI OYEDOYIN

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2. LASISI LAYIWOLA

3.

SHITTU OYELAMI

DEFENDANTS (Deceased)

DEFENDANT/APPELLANT

PLAINTIFFS/RESPONDENTS

SUIT NO. SC.686/65

SUPREME COURT OF

NIGERIA

BRETT,

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J.S.C.

20

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COKER,

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J.S.C.

LEWIS,

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J.S.C.

8th March, 1968.

Practice and Procedure - Actions - Defendants sued in personal capacity

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Defendant admitting in pleading that he was sued in representative capacity

on behalf of family - No objection taken in address of defendant's counsel

- Whether too late for defendant to raise issue of representation on appeal.

ISSUE:

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1. Whether a defendant who admitted in pleading that he was sued in a

representative capacity and who did not object at the trial that he was sued in

a such capacity, can later raise the issue of representation on appeal.

FACTS:

Judgment was given to the plaintiffs in the Ibadan High Court, granting them a

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declaration of title according to native law and custom, and judgment for a sum

of £37:10s being arrears of isakole payable by the defendants. The plaintiffs sued

the original two defendants, and the present appellant was by order of the court

substituted for them on their death. They were according to the Writ and to the

heading of the statement of claim, sued in a personal capacity. However, para-

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graph 4 of the statement of claini averred that the defendants were sued in a per-

sonal and representative capacity, and paragraph 1 of the statement of defence

admitted this paragraph 4 and other paragraphs in the statement of claim. No ob-

jection was taken in the address of the defendant/appellant's counsel to the learned

trial Judge in regard to the issue of representation. On appeal the defendant corn-

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plained that the trial Judge erred in law to have given judgment for the land in the

absence of an order to defend the suit in a representative capacity.

HELD:

1.

Having regard to the defendant's own admission on his pleading that he was

sued in a representative capacity on behalf of the Akintunde family, the way in

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which his defence at the hearing was conducted on the basis that the land was

Akintunde family land, the fact that it was not disputed that he was rightly the

representative of the Akintuncle family, and also the fact that no objection was

even taken in the address of the defendant's counsel to the trial Judge in regard

to this point, the Supreme Court was of the view that he was now too late to