OTAPO & ORS. V. SUNMONU & ORS.

• Pages: 677-710

OTAPO & ORS. V. SUNMONU & ORS.

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677

OTAPO & ORS. V. SUNMONU & ORS.

5

ALHAJI CHIEF YEKINI

OTAPO

(On behalf of himself and members

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of Isale Oja and Gbogunleri

Section of Ogunji Adebari Otapo and

Asunmoge Olu Chieftaincy families

of Agege)

V

15 CHIEF R.O. SUNMONU & ORS

IN RE: PRINCE MURAINO

ADEBARI

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SUPREME COURT OF NIGERIA

OBASEKI,



J.S.C.

PLAINTIFFS/

RESPONDENTS

DEFENDANTS/

RESPONDENTS/

APPELLANTS

(PERSON

INTERESTED)

SUIT NO. SC 250/1985

NNAMANI,

UWAIS,

KARIBI-WHYTE,

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KAWU,

OPUTA,

BELGORE,

15th May, 1987

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

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Practice and Procedure - Representative action - Whether necessary to bring

motion seeking leave to serve in representative capacity - Order 13 Rule 14

Lagos High

COUli

(Civil Procedure) Rule - Power of sole Representative -

Whether sole representative can have

more

representatives added to him or

can be substituted by another person - When representatives powers cease

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-

For whom lies benefit of judgment in representative action.

Constitutional Law - Fair hearing whether denial of it is a breach of constitutional

right, natural justice and rules of court - Difference between test of fairness

in hearing in trial court and test of fairness in hearing in appeal cowl.

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ISSUES:

1.

Whether it is mandatory that a pla

i

ntiff seeking to sue in a representative capacity

must first apply for leave of court so to do.

2.

Whether a presumption that leave to sue in a representative capacity has been

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granted can arise where an order for such leave was not specifically sought.

3.

Whether failure to obtain leave to sue in a reprsentative capacity will vitiate the

validity of an action.

4.

Whether the benefit of a judgment in an action given in favour of a plaintiff in a

representative capacity accrues to the plaintiff alone or to all the represented

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parties.

5.

What is the position of a representative plaintiff during proceedings, and does

this position change after judgment?

678

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NIGERIAN SUPREME COURT CASES

[1987] 2 N.S.C.C.

6.

Whether a plaintiff who successfully sues in a representative capacity can by

his failure to contest the appeal arising from the suit deprive the representatives

of a right of hearing in the appeal.

7.

When can a hearing be said to be a fair hearing?

8.

What is the difference between the test of fairness of hearing in a trial court and

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that of fairness of hearing in an Appeal Court.

9.

Whether the dismissal of an appeal on the grounds that a representative plaintiff,

against the wishes of the representative, was no longer interested in contesting

the appeal can be said to have been a fair hearing of the appeal.

10.

What is the appropriate order for a court to make when it is of the view that a

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plaintiff before it has no

locus stand':

an other striking out the suit, or an order

of dismissal?

FACTS:

The plaintiff brought an action in the Lagos High Court on a chieftaincy matter

seeking two declarations, an injunction and ''an order that a panel be set up to

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make a new Declaration'. The plaintiff did not at first plead that he was suing in a

representative capacity. Instead, in paragraph 1 of his statement of claim he

pleaded that the plaintiffs were "members of the ruling house of Olu of Agege

Chieftaincy family. The writ of summons and statement of claim were subsequently

amended to read "The plaintiff sues on his own behalf and in a representative ca-

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pacity", and the claim was also amended seeking a declaration that the appoint-

ment and approval of the 2nd defendant as Olu of Agege was null and void; that

the appointment of the 1st, 4th, 5th and 6th defendants as kingmakers was null and

void; and an injunction restraining the Governor, 10th defendant, his agents etc.

from installing the 2nd defendant as Olu of Agege.

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Pleadings were fully filed and delivered and the matter came up for hearing.

The trial judge overruled an objection to the application to amend the statement of

claim to reflect the plaintiff's representative capacity even though the plaintiff did

not specifically apply for leave to sue in a representative capacity, holding that

whereas in the first statement the plaintiffs had all come without authorising any

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one of their number to prosecute the action, in the amended statement someone

among the plaintiff's, i.e. the nominal plaintiff, claimed to have been authorised by

his other colleagues to prosecute the action not only for himself but also on their

behalf and in the absence of any evidence to the contrary he was competent to do

so even without leave of court. At the conclusion of the case the learned trial judge

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found for the plaintiff and granted all the prayers. In the course of his judgment

he observed that as the plaintiff had instituted the action for himself and on behalf

of the members of an arm of the Olu Chieftaincy family, the action was for a great

many individuals as well as for himself.

Aggrieved by the decision, all the defendants appealed to the Court of Appeal

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on many grounds. Before the appeal was heard, the plaintifflrespondent decided

not to defend the judgment obtained in the High court. He filed a document in the

Court of Appeal in which he claimed that due to representation made to him by

Chief and other responsible community leaders in Agege, he did not want to con-

tinue with the appeal and would be grateful if the candidature of the Olu elect

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(whose candidature he had contested in the trial court) was approved. He also

informed the court that he had instructed his solicitor to this effect and attached a

copy of his letter of instruction addressed to the Governor on his behalf informing

him of his withdrawal of opposition. In the letter he claimed he was the only per-

son as plaintiff who had opposed the candidature of the Olu elect, they denying

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any representative capacity.

Following the filing of these documents and service of them on the defend-

ants/appellants the 7th to 10th defendants filed an application by notice of motion

seeking an order for a departure of the rules to,

inter alia,

argue the appeal with-

OTAPO & ORS. V. SUNMONU & ORS.

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679

out filing briefs. The application was clearly based on the plaintiff's indication that

he was not contesting the appeal. The Court of Appeal granted the application

and heard the appeal without hearing from the represented parties who were in

court and had indicated their presence. The court proceeded to give judgment,

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allowed the appeal and set aside the judgment of the trial court, in the process dis-

missing the whole suit. On the defendents', ground of appeal that the plaintiff did

not obtain leave of court to sue in a representative capacity the Court of Appeal

upheld the ground and rejected what they considered to be the trial court interpre-

tation of Order 13 Rule 14 of the Lagos High Court Rules that notwithstanding that

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no order has been asked for, the court can make a person represent other people.

They also held that the plaintiff, even if he represented those he claimed to repre-

sent, had no

locus stand!

as the Declaration of the Olu of Agege made no room

for families as person entitled to provide candidates for the chieftaincy, and that

as the plaintiff did not bring the action as a male resident of one of the four guar-

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ters mentioned in the Declaration he had no

locus standi

to challenge anything

done by the appellants under the Declaration which is the customary law of the

Chieftaincy.

The represented families were dissatisfied with this decision and with leave of

the Court of Appeal, the appellant (in the Supreme Court) appealed against the

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judgment. He contended,

inter alga

that the Court of Appeal was wrong to have

unilaterally amended the title of the suit to reflect only the plaintiff as respondent;

that they erred when they proceeded to hear the appeal without the filing of briefs;

and that the denial of a hearing to the appellant who was a member of the repre-

sentatives in spite of the unilateral withdrawal of the nominal plaintiff was contrary

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to section 33(1) of the 1979 Constitution which guarantees fair hearing. The main

issue for determination was whether the plaintiff's action had deprived the repre-

sented parties of the benefit of the trial court's judgment in their favour and of any

opportunity of being heard in the appeal to the Court of Appeal.

The issue of leave in respect of representative actions was also in issue.

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HELD:

1.

The pleadings and the proceedings in the trial court showed that the action was

filed and prosecuted to judgment in a representative capacity. While it is true

that in keeping with Order 13 Rule 14 that it is more elegant for a plaintiff suing

in a representative capacity if he desires leave to sue in that capacity to make

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an application

simpliciter

seeking leave to so sue, unlike the provision of Order

3 Rule 2(1), the provision of Order 13 Rule 14 is couched not in mandatory but

in permissive terms.

2.

Even if an order for leave in not specifically sought it will be presumed that

leave to sue in that capacity was given if the title and the statement of claim

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reflects that capacity and the suit was prosecuted in that capacity to judgment

and judgment was given for or against the plaintiff in that capacity. The

presumption will be stronger if objective to sue in the representative capacity

in limine is overruled by the learned trial judge as in the instant case - see

Afolabi

v. Adekunle

(1983) 8 S.C. 98.

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3. It is settled law that the failure to ootain leave to sue in a representative capacity

does not vitiate the validity of the action. The mere fact that the court holds that

the plaintiff has held himself out as representing others cannot and does not

amount to the court making a person to represent other people. It is only if

leave is given or an order is made by the court for representation that it can be

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logically argued that the court is making a person represent other people. The

Court of Appeal was wrong in holding that what the trial court did amounted to

making the plaintiff represent other people.