(2018) lpelr-45321(ca)lawpavilionpersonal.com/ipad/books/45321.pdf · 1. alhaji ibrahim taiwo...
TRANSCRIPT
AJOMAGBERIN & ORS v. SALAU & ORS
CITATION: (2018) LPELR-45321(CA)
In the Court of AppealIn the Lagos Judicial Division
Holden at Lagos
ON FRIDAY, 29TH JUNE, 2018Suit No: CA/L/256/2002
Before Their Lordships:
TIJJANI ABUBAKAR Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal
Between1. ALHAJI IBRAHIM TAIWO AJOMAGBERIN2. ZAKARIYAU OYEROKUN OJORA3. MUDASHIRU KOPADA(For themselves and onbehalf of DEYARI KUEJI andKUMUYI ruling Houses, theObanikoro Chieftaincy familyof LAGOS)
- Appellant(s)
And1. ALHAJI RAHEEM SALAU2. RAHEEM SALAU (NIG) LTD3. LATEEF GAJI4. KAYODE BAKARE5. LAYI AJAYI-BEMBE6. SOJI AJAYI-BEMBE7. MOSUNMOLA AJAYI-BEMBE(3rd and 7th Defendants aresued for themselves for andon behalf of ILUMO RulingHouses & AJAYI-BEMBEDescendants of ObanikoroChieftaincy Family of Lagos)
- Respondent(s)
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RATIO DECIDENDI1. ACTION - REPRESENTATIVE ACTION: Whether a member of a family can institute a representative action without authorization
"The law is well settled that no family member can institute an action for and on behalf of the family without the expressauthorisation of the family. The law is also settled that any member of the family may defend the action in respect of family landwhere the benefit of success goes to the entire members of the family. In ALH MOH'D LAYINKA GALADIMA OF ILORIN & ORS Vs.ATTORNEY GENERAL OF KWARA STATE & ORS (2004) LPELR-12626 (CA) this Court per MIKA'ILU (JCA) (of blessed memory), whiledealing with whether a member of a family can institute a representative action without authorisation said as follows:"It is trite that no member of a family can institute an action for and on behalf of the members of the family without the consent orauthorisation of the family, but any member can personally defend it family land though the benefit of his success goes to theentire members of the family see: AKAPO Vs. HAKEEM-HABEEB..."I carefully read the decision in AKAPO Vs. HAKEEM-HABEEB & ORS (1992) LPELR-325 (SC), the Supreme Court of Nigeriaconsidered the effect of contracts made by family head/members of the family on behalf of the family. In dealing with this issue,KARIBI-WHYTE JSC said as follows:"Contracts made by the head of the family are valid. See BALOGUN Vs. BALOGUN (1935) 2 WACA 290. On the other hand, noindividual member or collection of members of the family have legal capacity to enter into contracts for or on behalf of the family.Such contracts without the participation of the head of the family are void: - See AGARAN V. OLUSHI (1907) 1 NLR 66".The issue before the lower Court has to do with building lease of the property 108 Nnamdi Azikiwe Street Lagos subject matter oflitigation which gave rise to this appeal. Let me state at this stage that the issue at the Court below has to do with the propriety ofthe lease executed in respect of the property which belongs to the Obanikoro Chieftaincy family. Part of the claim before thelower Court is again reproduced as follows."A declaration that the property situates, lying and being at No. 108 Nnamdi Azikiwe Street Lagos, (otherwise known as P.Z.BUILDING) belongs to the OBANIKORO CHIEFTAINCY FAMILY OF LAGOS.A declaration that the building lease executed in respect of No. 108 Nndmdi Azikiwe Street Lagos in favour of the 1st & 2nddefendants either the 3rd - 6th defendants OR their servant's agent's privies or cohort is wrongful, illegal, null & void and of noeffect whatsoever".The lower Court at page 58 of the records of appeal while striking out the action filed by the Appellants said as follows and Iquote."It is however surprising that while registered instruments of 19th century and early 20th Century were exhibited, there is no iotaof proof that a formal mandate was given by the three branches of the Obanikoro Chieftaincy families represented by thesePlaintiffs to institute this action.I am aware of the submissions of Counsel for the Plaintiffs and the authorities cited to the effect that when it comes to protectingthe interest of the family in property no mandate or authorisation is required or necessary. It is always a good exercise andpractice to read the body of the case law and reports and not merely the abridged precis as the ratio decidendi may be lostthrough abridgment. Circumstance of this case where members of the branches of the Obanikoro Chieftaincy family are fightingover ownership of a property is quite different when compared with external aggression.Even in the much cited authority of AKAPO V HAKEEM-HABEEB (1992) 6 NWLR (pt. 247) 266 at 293 where KARIBI-WHYTE said;"The head of the family can institute actions for and on behalf of the family.The expression of the Supreme Court justice about express mandate seems to me to be a written authorisation duly signed bythose competent to do so...".The central issue considered by the learned trial Judge in arriving at a decision in this case is just that, the Plaintiffs Appellantshave no right to institute an action on behalf of the family without express authorisation to do so. The learned trial Judge tookguidance from the decision of the Supreme Court inAKAPO vs. HAKEEM-HABEEB (supra). I am fully convinced that the learned trialjudge in the instant case properly applied the law as it is. It is the law that head of the family can institute actions for and onbehalf of the family and such actions are valid but to the contrary no individual member or collections of members of the familyhave legal right to enter into contracts for or on behalf of the family, such contracts without the participation of the head of thefamily are void, and no individual member of the family without express mandate from the family can commence action in Courtfor and on behalf of the family, and where a family member or members proceed to commence action on behalf of the familywithout express authorisation the action shall be incompetent and therefore liable to be struck out.The application seeking to dismiss the suit is at page 23 - 25 of the records of appeal, the deponent stated in the affidavit insupport of the motion that he had the authority of the Obanikoro family to challenge the authority of the Plaintiffs to bring theaction, and that he is also a principal member of the Deyari branch of the Obanikoro family and therefore competent to challengethe authority of the Plaintiffs to bring the representative action. Since the deponent in the Affidavit in support of the Applicationdisclosed his status as a member of the family the Appellants seek to represent, a fact which was neither denied nor challengedby the Appellants, it suffices to say that the challenge to the representative capacity of the Appellants was in order, rendering thedecision in ELF-PETROLEUM NIG LTD Vs. DANIEL C. UMAH & ORS (Supra) relied upon by the Appellants inapplicable to the instantcase.Having failed to dislodge the status of the deponent as a member of the family which the Appellants purports to represent, theAppellants cannot be heard to say their capacity to commence the present action cannot be challenged by the Respondents;rather, as the fact on record shows, it is incumbent on the Appellants to show that they have the express authority of the family tocommence the suit.In AKAPO Vs. HAKEEM-HABEEB (Supra), the Supreme Court of Nigeria held as follows and I quote:"It is well established principle of our law that the position of the head of family particularly in societies with recognisedchieftaincies with respect to the control and management of its properties is dominant. The chief is the head of the family. He is incharge and control of the family property. He collects revenue from the family property, and makes recognised disbursements inrespect of legitimate expenditure in the interest and for the purposes of the family.The head of the family can institute actions for and on behalf of the family.Contracts made by the head of the family for and on behalf of the family are valid: See: Balogun v. Balogun .... (1935) 2 WACA.290.On the other hand, no individual members of the family have legal capacity to enter into contracts for and on behalf of the family.Such contracts without the participation of the head of the family are void. See: Agaran v. Olushi (1907) 1 NLR 66.Again, no member of the family without the express mandate from the family can institute action in Court for and on behalf of thefamily. (Underlining mine).I am in complete agreement with the learned trial Judge that, since there was no express authorisation for the Plaintiffs/Appellantsto institute the action on behalf of the Obanikoro Chieftaincy family, the action is incompetent and therefore deserves to be struckout."Per ABUBAKAR, J.C.A. (Pp. 15-22, Paras. E-F) - read in context
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2. APPEAL - REPLY BRIEF: Purpose/function of a reply brief"The Appellants re-argued their appeal again in the amended reply brief, the amended reply is substantially a repetition of thesubmissions of learned Counsel for the Appellants in their amended brief of argument, this is obviously not the purpose of a replybrief, a reply brief is essentially an opportunity for the Appellant to address the new points raised by the Respondent in his brief ofargument where the Appellants brief taken as it is cannot effectively and efficiently tackle the new points, the Appellantsamended reply brief has defeated the purpose of reply brief..."Per ABUBAKAR, J.C.A. (Pp. 12-13, Paras. E-A) - read in context
3. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether an Appeal Court can adopt or formulate issue(s) fordetermination"it is now settled that an Appeal Court may reframe issues for determination in a bid to address the issues of the parties, or adoptissues of the parties where so doing would serve the interest of justice, or/and address the real grievance in the appeal oreffectively resolve the issues in controversy between the parties see: ABIOLA & SONS BOTTLING CO. LTD Vs. SEVEN-UP BOTTLINGCOMPANY (2012) LPELR-9279 (SC), BIARIKO Vs. EDEH OGWUILE (2001) 12 NWLR (Pt. 726) 235 at 265 and OBIUWEUBI Vs.CENTRAL BANK OF NIGERIA (2011) 7 NWLR (Pt.1247) 455."Per ABUBAKAR, J.C.A. (Pp. 13-14, Paras. F-C) - read in context
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TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading
Judgment): The Appellants in this appeal commenced
action against the Respondents at the Court below seeking
for the following reliefs:
a. A declaration that the property situates, lying and
being at No. 108 Nnamdi Azikiwe Street Lagos,
(otherwise known as P.Z. BUILDING) belongs to the
OBANIKORO CHIEFTAINCY FAMILY OF LAGOS.
b. A declaration that the building lease executed in
respect of No. 108 Nnamdi Azikiwe Street Lagos in
favour of the 1st & 2nd defendants either the 3rd -6th
defendants OR their servant's agent's, privies or
cohort is wrongful, illegal, null & void and of no effect
whatsoever.
c. A declaration that the DEMOLITION (partial or
complete) of the property (i.e. No. 108, NNAMDI
AZIKIWE STREET, LAGOS) by the defendants, their
servants, agents, or privies is wrongful and illegal.
d. An order directed against the defendants for the
payment of One Million Naira (1,000,000.00) being
damages for wilful and unlawful demolition of the
said property situate at NO. 108. Nnamdi Azikiwe
Street, Lagos.
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e. An order of perpetual injunction restraining the
defendants whether by themselves, their servant's
agents or privies from further demolishing
constructing, redeveloping or dealing in any manner
whatsoever with the property situate lying and being
at No. 108 Nnamdi Azikiwe Street, Lagos which
property is also known as P.Z. BUILDING, LAGOS.
At the time the writ of summons was taken, the building
subject matter of litigation was half-way demolished by the
Respondents, the Appellants as Plaintiffs filed series of
applications seeking to restrain the Respondents from the
on-going demolition of the subject matter. After demolition
of the structures, the Respondents commenced and
completed reconstruction, it was at this point, the lower
Court on the 15th day of October 2001 now made an order
that the newly reconstructed structures must not be
occupied, in other words the Respondents must wait for the
Court to determine the suit.
While the order restraining occupation of the newly
reconstructed building was pending, the 4th Respondent in
this appeal brought an application dated 5th February,
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2001, contending that the Plaintiffs had no authority of the
family to institute the action against the Respondents. The
Court below took the application and gave ruling striking
out the suit on the ground that the Plaintiffs had no
authority to bring the action.
This appeal is therefore against the Ruling of the High
Court of Lagos State delivered by Akinsanya J, on the 7th
day of December, 2001 in suit No. LD/3543/2000, striking
out the suit. The Appellants became aggrieved by the
decision and therefore filed amended Notice of appeal
containing four grounds of appeal on the 15th day of March
2018, deemed as properly filed and served on the 23rd day
of March 2018.
Learned Counsel for the Appellants Olusegun Fabunmi filed
the amended Appellant's brief of argument on the 15th day
of March 2018, and Amended Appellants reply on the 12th
day of April 2018.
In the Amended Appellant's brief of argument learned
Counsel on behalf of the Appellants nominated three issues
for determination, the issues are as follows:
1. Whether or not an application challenging the
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authority to sue is the same as challenging the
LOCUS STANDI to institute an action.
II. Whether or not an application challenging
authority to sue is the same as the one challenging
legal capacity to institute an action.
III. Whether or not a member of a family requires
authority to institute an action to protect family
property.
The 1st and 2nd Respondents filed no briefs of argument,
the 3rd, 4th 5th and 5th however filed their amended brief
through learned Counsel H. O. Igbokwe on the 10th day of
April 2018.
The Respondents through learned Counsel identified just
one issue for determination and the issue is also
reproduced as follows:
"Whether the Appellants could bring the action in
suit No. LD/3543/2000 on behalf of the Obanikoro
Chieftaincy family, when the said family is not in
support of the action and did not authorise the
Appellants to institute same".
SUBMISSIONS OF COUNSEL FOR THE APPELLANTS
Submitting on the Appellants first issue for determination,
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learned Counsel referred this Court to page 25-30 of the
records of appeal to submit that the lower Court held the
view that the Appellants had no locus standi to bring the
action against the Respondents. Learned Counsel for the
Appellants submitted that a party's authority to sue is
different from his locus standi. Counsel said lack of locus
standi means the Appellant has no sufficient interest in the
subject matter of litigation. Counsel submitted that
challenge to locus standi is a challenge to legal capacity of
the party to institute legal proceedings in Court, he relied
on the decisions in OWODUNNI Vs. REGISTERED
TRUSTEES OF CELESTIAL CHURCH OF CHRIST
(2000) 10 NWLR (Pt. 675) 315, and the decision in
ADESANYA Vs. PRESIDENT & ANOR (1981) 5 SC 112.
Learned Counsel for the Appellants submitted that where
locus standi is challenged, the contention is that the person
who instituted the action has no interest or sufficient
interest in the matter. Learned Counsel for the Appellants
submitted the applicants/Respondents did not challenge the
locus standi of the Appellants, it was therefore erroneous
on the part of the Court to hold that Appellants had no
locus
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standi, and used the same as basis for striking out the suit.
Counsel for the Appellants contended that the order
striking out the suit is misconceived and therefore urged
this Court to set aside the decision.
On issue number two, learned Counsel for the Appellants
adopted his submissions on issue Number One, and
submitted that the 4th Respondent did not at any point in
his application before the lower Court challenge the legal
capacity of the Appellants to institute the action. Counsel
therefore submitted that issue of lack of legal capacity as a
basis for striking out the Appellants suit was misconceived.
On issue number three, learned Counsel for the Appellants
submitted that the property subject matter of this appeal is
a family property and that the Appellants belong to the
Obanikoro family the owners of the said property. Counsel
referred this Court to the decisions in SOGUNLE Vs.
AKERELE NMLR Pg. 58 at 50, ALHAJI LAMIDI
DAWODU OLOWOSAGO & ORS VS. ALHAJI AMUDA
ADEBANJO (1988) 43 NWLR PT. 88 Pg. 275 at 278,
SUFIANU Vs. ANIMASHAUN (2000) 14 NWLR Pt. 688
at 650, and
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EFFIOM VS. IRONBAR (2000) 3 NWLR (Pt. 650) Page
545, That since Appellants are members of the family, they
require no authorisation to legally maintain an action in
Court to protect their property. Learned Counsel also urged
this Court to note the difference between contract entered
into on behalf of family by family members and the validity
of an action by family members towards protecting family
property. Counsel said the action in this appeal relates to
protection of family property by family members not
contract entered into by family members on behalf of their
family.
Learned Counsel for the Appellants referred to the decision
in SHELL PETROLEUM DEV COMPANY NIGERIA
LIMITED Vs. CHIEF. T. EDAMKUE & ORS. (2009) ALL
FWLR (Pt. 489) 407 at 429, to submit that a person has
the right to protect his family property and can sue for
himself or on behalf of his family in representative capacity.
Again it was submitted on behalf of the Appellants that
once it is shown or expressed on the writ that the action is
brought in a representative capacity only member of that
family or community can challenge the capacity. Counsel
relied on
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the decision in ELF PETROLEUM NIGERIA LIMITED
Vs. DANIEL C. UMAH & ORS (2018) LPELR-43600
(SC).
Learned Counsel for the Appellants therefore submitted
that the action by members of the family to protect family
property with or without authority is valid and
maintainable. He therefore urged that the appeal be
allowed.
SUBMISSIONS OF COUNSEL FOR THE 3rd, 4th, 5th
AND 6TH RESPONDENTS
I earlier on stated that the 1st and 2nd Respondents filed
no briefs of argument. I will therefore consider the
submission of learned Counsel for the 3rd, 4th, 5th and 6th
Respondents. Learned Counsel for the Respondents just
nominated one issue for determination where he said from
the Judgment delivered by the lower Court, two things
came to light, that the Obanikoro Chieftaincy family did not
give the Appellants any authorisation to institute the suit.
That the Obanikoro Chieftaincy family was not in support of
the Appellants and the action commenced by them because
the Head of the Obanikoro Chieftaincy family and the
Principal elders of the family are in a better
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position to know which property is and which one is not
family property.
It was the contention of learned Counsel for the
Respondents that the lower Court found as a fact that the
entire Obanikoro family were together in their objection to
the suit filed by the Appellants. Counsel also contended
that even though the Appellants contended that they
obtained written authorisation from the three branches of
the Obanikoro family, they failed to establish the
authorisation at the trial. Counsel also submitted that the
learned trial Judge found that there is distinction between
external aggression and internal affairs of family, Counsel
said where there is external aggression against family
property from an outsider family members may require no
authorisation to defend the property, but where the
disagreement arises from internal affairs of the family, the
head of the family or the principal members, of the family
are the best to know which property constitutes family
property and which one does not. Counsel said the instant
appeal has to do with internal family affair as opposed to
external affairs, it was clearly stated by the principal
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members of the family that the property subject matter of
litigation does not belong to the Obanikoro chieftaincy
Family, Appellants therefore had no business instituting the
action.
The learned Counsel for the Respondents submitted that
the learned trial Judge was right when he held that
Appellants needed written authorisation from relevant and
competent persons in the family to commence action on
behalf of the family. Counsel for the Respondents said the
learned trial Judge was therefore right in relying on the
decisions in, AKAPO vs. HAKEEM-HABEEB (1992) 6
NWLR (Pt.247) 255 at 293, BALOGUN Vs. BALOGUN
(1935) 2 WACA 290, AGARAN vs. OLUSHI (1907)
INLR 65 in coming to the conclusion that the Appellants
needed the written authorisation of competent persons
within the family to commence the action to protect family
property.
Counsel for the Respondents submitted that from the
materials before the Court, the property subject matter of
litigation 108 Nnamdi Azikiwe Street Lagos belongs to
Ajayi-Bembe family and not Obanikoro Chieftaincy family.
That since the Appellants are not the owners of
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the property, they have no right to file the action, that right
of action only arises where the interest of a person is
adversely affected, he relied on the decisions in ASHEIK
vs. GOVT OF BORNO STATE (1994) 2 NWLR (Pt.326)
Pg.344 at 348, UBA Vs. MICHAEL O. ABIMBOLA & CO
(1995) 9 NWLR (Pt. 419) 371.
Learned Counsel for the Respondents said, the learned trial
Judge was right in striking out the suit on the ground that
the Appellants did not have sufficient interest to sue, the
action is therefore an exercise in futility, he therefore
urged this Court to dismiss the appeal.
APPELLANTS REPLY TO THE 3RD TO 6TH
RESPONDENTS.
In the amended reply to the 3rd- 6th th Respondents brief,
Counsel said the three authorities cited by the Respondents
are not relevant to the subject matter of appeal, Counsel
went further to elaborate on the authorities and finally
submitted that the authorities were cited out of context,
and it would be in appropriate for a party to be given what
i t d id not ask for as done by the learned tr ia l
Judge. Counsel rel ied on the
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decision in ODOFIN Vs. AGU (1992) 3 NWLR 350.
Counsel then submitted that a party must not be awarded
what he does not ask for or pleaded by either party.
Learned Counsel for the Appellants said what the 4th
Respondent as 4th Defendant asked for at the Court below
was that the action be dismissed because the Plaintiffs had
no authority of Dayeri, Kueji, and Kumuyi branches of the
Obanikoro Chieftaincy family to commence the action.
Learned Counsel said the issue of locus standi was not
before the Court, the lower Court was therefore in error to
have raised the issue on its own, he relied on the decisions
in ABBAS Vs SOLOMON (2001) 7 MJSC 149, and NAF
Vs. SHEKETE (2003) 2 MJSC 53.
The Appellants re-argued their appeal again in the
amended reply brief, the amended reply is substantially a
repetition of the submissions of learned Counsel for the
Appellants in their amended brief of argument, this is
obviously not the purpose of a reply brief, a reply brief is
essentially an opportunity for the Appellant to address the
new points raised by the Respondent in his brief of
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argument where the Appellants brief taken as it is cannot
effectively and efficiently tackle the new points, the
Appellants amended reply brief has defeated the purpose of
reply brief, I have however taken some part of the reply, I
am sure it is not necessary to run through the entire reply
as so doing will amount to embarking on another round of
arguments totally unnecessary and uncalled for. Let me
close the reply by stating that Appellants finally urged that
this appeal be allowed, and further urged that the suit be
remitted for trial on the merit before the Court below.
RESOLUTION
The issues for determination crafted by learned Counsel for
the Appellant are seemingly fragmented components of
Respondents sole issue for determination. I am of the view
that the three issues can be effectively collapsed into
Respondents sole issue, let me also state that,
determination of Respondents sole issue for determination
will effectively and effectually resolve the issue in
controversy between the parties in this appeal, it is now
settled that an Appeal Court may reframe issues for
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determination in a bid to address the issues of the parties,
or adopt issues of the parties where so doing would serve
the interest of justice, or/and address the real grievance in
the appeal or effectively resolve the issues in controversy
between the parties see: ABIOLA & SONS BOTTLING
CO. LTD Vs. SEVEN-UP BOTTLING COMPANY (2012)
LPELR-9279 (SC), BIARIKO Vs. EDEH OGWUILE
(2001) 12 NWLR (Pt . 726) 235 at 255 and
OBIUWEUBI Vs. CENTRAL BANK OF NIGERIA (2011)
7 NWLR (Pt.1247) 455.
I am of the view that the issue to resolve in this appeal is
"Whether the Appellants could bring the action in suit No.
LD/3543/2000 on behalf of the Obonikoro Chieftaincy
family, when the said family is not in support of the action
and did not authorise the Appellants to institute same".
The narrow issue is therefore that while the Appellants
contend that it is not necessary to obtain written
authorisation from principal members of the Obanikoro
Chieftaincy family before commencing their action, the
Respondents on the other hand contended that written
authorisation to sue on behalf of the Obanikoro Chieftaincy
family must be obtained by the Plaintiffs/Appellants.
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The Court upon considering the submissions of Counsel
agreed that the Appellants as Plaintiffs needed written
authorisation from the Principal members of the Obanikoro
Chieftaincy family in order to commence valid and
competent action against the Respondents, and since they
had no such authorisation the lower Court found that the
action was incompetent, it was therefore accordingly struck
out. This is therefore the narrow issue to resolve in this
appeal. The Appellants as Plaintiffs at paragraphs 13-14 of
the statement of claim at page 5 of the records of appeal
said the property was leased to the 1st and 2nd Defendants
as developers and building agreement was secretly
executed and hidden from the 3 other Ruling Houses as
represented by the Plaintiffs, but the Ruling Houses clearly
denied giving any authorisation to the Plaintiffs to sue.
The law is well settled that no family member can institute
an action for and on behalf of the family without the
express authorisation of the family. The law is also settled
that any member of the family may defend the action in
respect of family land where the benefit of success goes to
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the entire members of the family. In ALH MOH'D
LAYINKA GALADIMA OF ILORIN & ORS Vs.
ATTORNEY GENERAL OF KWARA STATE & ORS
(2004) LPELR-12626 (CA) this Court per MIKA'ILU (JCA)
(of blessed memory), while dealing with whether a member
of a family can institute a representative action without
authorisation said as follows:
“It is trite that no member of a family can institute an
action for and on behalf of the members of the family
without the consent or authorisation of the family,
but any member can personally defend it family land
though the benefit of his success goes to the entire
members of the family see: AKAPO Vs. HAKEEM-
HABEEB...”
I carefully read the decision in AKAPO Vs. HAKEEM-
HABEEB & ORS (1992) LPELR-325 (SC), the Supreme
Court of Nigeria considered the effect of contracts made by
family head/members of the family on behalf of the family.
In dealing with this issue, KARIBI-WHYTE JSC said as
follows:
"Contracts made by the head of the family are valid.
See BALOGUN Vs. BALOGUN (1935) 2 WACA 290. On
the other hand, no individual member or collection of
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members of the family have legal capacity to enter
into contracts for or on behalf of the family. Such
contracts without the participation of the head of the
family are void: - See AGARAN V. OLUSHI (1907) 1
NLR 66”.
The issue before the lower Court has to do with building
lease of the property 108 Nnamdi Azikiwe Street Lagos
subject matter of litigation which gave rise to this appeal.
Let me state at this stage that the issue at the Court below
has to do with the propriety of the lease executed in
respect of the property which belongs to the Obanikoro
Chieftaincy family. Part of the claim before the lower Court
is again reproduced as follows.
“A declaration that the property situates, lying and
being at No. 108 Nnamdi Azikiwe Street Lagos,
(otherwise known as P.Z. BUILDING) belongs to the
OBANIKORO CHIEFTAINCY FAMILY OF LAGOS.
A declaration that the building lease executed in
respect of No. 108 Nndmdi Azikiwe Street Lagos in
favour of the 1st & 2nd defendants either the 3rd –
6th defendants OR their servant's agent's privies or
cohort is wrongful, illegal, null & void and of no
effect whatsoever".
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The lower Court at page 58 of the records of appeal while
striking out the action filed by the Appellants said as
follows and I quote.
“It is however surprising that while registered
instruments of 19th century and early 20th Century
were exhibited, there is no iota of proof that a formal
mandate was given by the three branches of the
Obanikoro Chieftaincy families represented by these
Plaintiffs to institute this action.
I am aware of the submissions of Counsel for the
Plaintiffs and the authorities cited to the effect that
when it comes to protecting the interest of the family
in property no mandate or authorisation is required
or necessary. It is always a good exercise and practice
to read the body of the case law and reports and not
merely the abridged precis as the ratio decidendi may
be lost through abridgment. Circumstance of this
case where members of the branches of the
Obanikoro Chieftaincy family are fighting over
ownership of a property is quite different when
compared with external aggression.
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Even in the much cited authority of AKAPO V
HAKEEM-HABEEB (1992) 6 NWLR (pt. 247) 266 at
293 where KARIBI-WHYTE said; “The head of the
family can institute actions for and on behalf of the
family.
The expression of the Supreme Court justice about
express mandate seems to me to be a written
authorisation duly signed by those competent to do
so…”.
The central issue considered by the learned trial Judge in
arriving at a decision in this case is just that, the Plaintiffs
Appellants have no right to institute an action on behalf of
the family without express authorisation to do so. The
learned trial Judge took guidance from the decision of the
Supreme Court inAKAPO vs. HAKEEM-HABEEB
(supra). I am fully convinced that the learned trial judge in
the instant case properly applied the law as it is. It is the
law that head of the family can institute actions for and on
behalf of the family and such actions are valid but to the
contrary no individual member or collections of members of
the family have legal right to enter into contracts for or on
behalf of the family, such contracts without the
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participation of the head of the family are void, and no
individual member of the family without express mandate
from the family can commence action in Court for and on
behalf of the family, and where a family member or
members proceed to commence action on behalf of the
family without express authorisation the action shall be
incompetent and therefore liable to be struck out.
The application seeking to dismiss the suit is at page 23 -
25 of the records of appeal, the deponent stated in the
affidavit in support of the motion that he had the authority
of the Obanikoro family to challenge the authority of the
Plaintiffs to bring the action, and that he is also a principal
member of the Deyari branch of the Obanikoro family and
therefore competent to challenge the authority of the
Plaintiffs to bring the representative action. Since the
deponent in the Affidavit in support of the Application
disclosed his status as a member of the family the
Appellants seek to represent, a fact which was neither
denied nor challenged by the Appellants, it suffices to say
that the challenge to the representative capacity of
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the Appellants was in order, rendering the decision in ELF-
PETROLEUM NIG LTD Vs. DANIEL C. UMAH & ORS
(Supra) relied upon by the Appellants inapplicable to the
instant case.
Having failed to dislodge the status of the deponent as a
member of the family which the Appellants purports to
represent, the Appellants cannot be heard to say their
capacity to commence the present action cannot be
challenged by the Respondents; rather, as the fact on
record shows, it is incumbent on the Appellants to show
that they have the express authority of the family to
commence the suit.
In AKAPO Vs. HAKEEM-HABEEB (Supra), the Supreme
Court of Nigeria held as follows and I quote:
“It is well established principle of our law that the
position of the head of family particularly in societies
with recognised chieftaincies with respect to the
control and management of its properties is
dominant. The chief is the head of the family. He is in
charge and control of the family property. He collects
revenue from the family property, and makes
recognised disbursements in respect of
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legitimate expenditure in the interest and for the
purposes of the family.
The head of the family can institute actions for and
on behalf of the family.
Contracts made by the head of the family for and on
behalf of the family are valid: See: Balogun v.
Balogun .... (1935) 2 WACA. 290.
On the other hand, no individual members of the
family have legal capacity to enter into contracts for
and on behalf of the family. Such contracts without
the participation of the head of the family are void.
See: Agaran v. Olushi (1907) 1 NLR 66.
Again, no member of the family without the express
mandate from the family can institute action in Court
for and on behalf of the family. (Underlining mine).
I am in complete agreement with the learned trial Judge
that, since there was no express authorisation for the
Plaintiffs/Appellants to institute the action on behalf of the
Obanikoro Chieftaincy family, the action is incompetent and
therefore deserves to be struck out.
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The sole issue for determination is therefore resolved in
favour of the Respondents against the Appellants, and it
follows therefore that this appeal is devoid of merit and it is
accordingly dismissed, the Ruling delivered by Akinsanya J
on the 7th day of December 2001 in suit No. LD/3543/2000
is affirmed.
Parties shall bear their respective costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely
agree with, and do not desire to add to, the reasoning and
conclusion in the leading judgment of my learned brother,
Tijjani Abubakar, JCA, which I was privileged to read in
draft.
I adopt the reasoning and conclusion as mine and equally
join in dismissing the appeal for being devoid of merit. I
abide by the consequential orders contained in the leading
judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I
had the privilege of reading the draft copy of the judgment
just delivered by my learned brother TIJJANI ABUBAKAR,
JCA and I am in agreement with the succinct
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reasoning and conclusion reached therein. I have nothing
more to add.
I too dismiss the appeal as devoid of merit. The Ruling of
the lower Court is accordingly affirmed. I also abide by the
consequential orders therein.
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Appearances:
O. Fabunmi with him, O. Sarumi Akande ForAppellant(s)
H. O. Igbokwe - for 3rd - 6th Respondents ForRespondent(s)
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