Defence of an Action in Representative Capacity
Facts
The Respondent had commenced an action at the High Court of Lagos State in Suit No. ID/339/88 against a certain Chief Jimoh Arowolo as Defendant, in a representative capacity. The Respondent sought inter alia, a declaration that he is entitled to the statutory right of occupancy over a parcel of land at Olayiwola Street, Oko Oba, Ikeja Local Government, Lagos State. While trial was ongoing, the Respondent discovered that the 1st Appellant had destroyed the structures on the land in dispute, and was constructing a building on the land. Further to this, the Respondent filed an application to join the 1st Appellant in the suit. The Application was opposed by the 1st Appellant, and refused by the court. At the end of the trial, Olorunnimbe J, entered judgement in favour of the Respondent.
Not having included an order of possession of the property in his writ of summons originally, the Respondent subsequently approached the court for an order of possession of the land. The 1st Appellant filed an application to join the already concluded suit, but it was dismissed. On 19th April, 2004, Honourable Justice A. F. Adeyinka made a consequential order of possession of the land in favour of the Respondent. The order was made consequent upon the judgement of Olorunnimbe J. delivered on 23rd March, 1998. The 1st Appellant and his wife who had split the parcel of land into two and obtained certificates of occupancy over the same filed an appeal against the consequential order of possession through Appeal Nos. CA/L/579/06 and CA/L/578/06. On 5th April, 2013, the Court of Appeal delivered its judgement in which it allowed the appeal, and set aside the consequential order of possession.
Thereafter, the Respondent commenced an action by way of originating summons in Suit No. LD/446/2013 against the Appellants and “every other person in occupation of the property in dispute” at the High Court of Lagos State, claiming possession of the land over which judgement was delivered in his favour in Suit No. ID/339/88. The Appellants opposed the claim for possession on the grounds that they were not parties to Suit No. ID/339/88; that the action was statute barred, and that the mode of commencement of the action by an originating summons was inappropriate. The trial Court coram Honourable Justice Femi-Adeniyi however, found merit in the Respondent’s action and granted him possession of the property on the ground that the Appellants are privy to Chief Arowolo who was the Defendant in Suit No. ID/339/88. Aggrieved, the Appellants filed an appeal to the Court of Appeal which dismissed the appeal. The Appellants further appealed to the Supreme Court. In their brief of argument, the Appellants distilled 3 issues for determination which the court relied on in its determination of the appeal.
Issues for Determination 1. Whether the Appellant is bound by the decision of Olorunnimbe J. in Suit No. L/339/88. 2. Whether the action of the Respondent is statute barred. 3. Whether the action was properly instituted by way of originating summons.
Arguments On the 1st issue, counsel for the Appellants argued that, the Appellants were not parties to Suit No. ID/339/88 and Chief Arowolo who was the Defendant in the suit did not have any common interest with the Appellants, to have been able to represent them in defending the Respondent’s claim. He also argued that the effect of the refusal of Olorunnimbe J. to join the Appellants in Suit No. ID/339/88, was that the Appellants could not be bound by the judgement of His Lordship. He further submitted that, the success of the Appellant’s appeals against the order of possession of Adeyinka J. in Appeal Nos. CA/L/578/06 and CA/L/579/08, means that the Appellants are not bound by the judgement of Olorunnimbe J. in Suit No. ID/339/88.
Conversely, counsel for the Respondent argued that, the 1st Appellant and his wife were privies of the Chief Jimoh Arowolo who was sued in Suit No. ID/339/88 in a representative capacity. He contended that, the Appellants’ appeals in Appeal Nos. CA/L/ 578/06 and CA/L/579/08 were strictly against the consequential order of possession made by Adeyinka J. and the judgements of the Court of Appeal on the appeals only set aside the ruling of Adeyinka J. in that regard. He submitted that, nowhere in the said judgements was the judgement of Olorunnimbe J. set aside or interfered with, and the judgement of Olorunnimbe J. was also never appealed against by the Appellants.
On the 2nd issue, counsel for the Appellants contended that time started to run against the Respondent when he became aware of the Appellants’ adverse claims to the land, and when his application to join the Appellants in Suit No. ID/339/88 was refused. He cited HOMFRAY v SCROOPE (1849) QD 509. He submitted that, by the time the Respondent commenced the suit before Justice Femi Adeniyi on 13th June, 2013, his right of action was well outside the twelve year limitation prescribed under Section 16(2) of the Limitation Law of Lagos State.
Counsel for the Respondent argued that, the Respondent’s cause of action in Suit No. LD/446/2013 arose after the determination of the Appellants’ appeals in Appeal Nos. CA/L/578/06 and CA/L/ 579/08 on 5th April, 2013 and time did not run during the pendency of the appeals. He argued that, the Respondent’s right of action for the purpose of enforcing the judgement in Suit No. ID/ 339/88 was only possible, after the bar placed on that right by the Appellants’ two appeals was removed. He relied on IBRAHIM v OSIM (1987) 4 NWLR (PT. 67) 965.
On the 3rd issue, counsel for the Appellant submitted that, the Court of Appeal erred in law in upholding the originating summons procedure adopted by the Respondent in initiating the suit, as there were clear contentious matters that could not have been properly resolved on the basis of an originating summons.
Counsel for the Respondent submitted that, the originating summons procedure utilised by the Respondent was appropriate.
Court’s Judgement and Rationale In resolving the 1st issue, the Court held that the extant rules of the trial court entitle a Defendant to defend a suit in representative capacity, and once there is evidence, and the judgement of Olorunnimbe J is unquestionably a conclusive one, that a Defendant appears to possess representative capacity and presumably acts upon the authority of the persons he represents, the Appellants herein and Olarokun family members, the appellate court will not set aside the trial court’s judgement, on the objection that leave had not been sought and obtained from the Court. The Court relied on its decision in WIRI & ORS v UCHE & ORS (1980) 12 SC 1 and held that, Chief Jimoh Arowolo, the Defendant in Suit No. ID/339/88 was sued as a representative of the Olarokun family which the Appellant and his wife purchased the land in dispute from, and he had defended the suit in that capacity with the 1st Appellant and his wife who were his privies. The Appellants were aware of the proceedings before Olorunnimbe J. and had even opposed the Respondent’s application to join them as parties, hence, it was too late for them to raise the very query they refused to raise before Olorunnimbe J. The Court held that, findings of court persist until they are set aside on appeal, hence, since the judgement of Olorunnimbe J. in Suit No. ID/339/88 was not appealed against, it subsists and remains binding on the Appellants. Reliance was placed on Daniel v FRN (2015) LPELR – 24733 (SC).
On the 2nd issue, the Apex Court held that, limitation period abates as long as the matter is pending in court, and a matter is said to be pending in court when any proceeding can be taken in it. The Court held that the judgement of Olorunnimbe J. in Suit No. ID/339/88 was kept in abeyance by the 1st Appellant and his wife at the time they pursued their appeals against the consequential order of possession by Adeyinka J. Therefore, the Court of Appeal was correct when it held that, the cause of action in Suit No. LD/446M/2013 was commenced after judgement was delivered in the appeals, and the bar placed on the Respondent’s right of action to enforce the judgement of Olorunnimbe J. in Suit No. ID/339/88 was removed.
On the 3rd issue, the Court held that originating summons may be employed to commence an action where the issue involved is one of construction of a written law, instrument, deed, will or other document or some question of pure law is involved, or where there is unlikely to be any substantial dispute or issues of fact between the parties. The Court referred to its decision in FESTUS KEYAMO v HOUSE OF ASSEMBLY LAGOS STATE 7 ORS. (2002) 12 SC (PT. 1) P. 190 AT P. 191. The Court held that, the issue before the trial court did not raise any conflict of facts, such that pleadings would be ordered for the purpose of calling oral evidence to resolve such conflict. The Court held that, the suit was properly commenced, in view of the fact that the simple task before the trial court was the construction of Olorunnimbe J.’s judgement in deciding whether or not the Respondent was entitled to the possession of the land he was declared to be the owner.
Appeal Dismissed.
Representation G. O. Alabi (Mrs.) for the Appellants.
Oladele Ajikanju for the Respondent.
Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Report (NMLR))
“...... THE EXTANT RULES OF THE TRIAL COURT ENTITLE A DEFENDANT TO DEFEND A SUIT IN REPRESENTATIVE CAPACITY ...... THE APPELLATE COURT WILL NOT SET ASIDE THE TRIAL COURT’S JUDGEMENT, ON THE OBJECTION THAT LEAVE HAD NOT BEEN SOUGHT AND OBTAINED FROM THE COURT”