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CHIEF THEOPHILUS AJAYI ADAJA
SUPREME COURT OF NIGERIA
14TH JANUARY, 1966.
BEFORE THEIR LORDSHIPS:
SIR LIONEL BRETT, J.S.C. (Presided and Read the Judgment of the Court)
CHARLES DADI ONYEAMA, J.S.C.
MICHAEL OGUEJIOFO AJEGBO, J.S.C
Chief F.R.A. Williams (with him, A. Fagbemi) – for the Respondent
LAND LAW – Family property – Representative action on behalf of family – Failure to prove common interest with the family – Effect.
LAND LAW – Family property – Who can sue for protection thereof.
PRACTICE AND PROCEDURE- Family property – Who can sue to protect family property.
PRACTICE AND PROCEDURE – Non-suit – When to order.
BRETT, J.S.C. (Delivering the Judgment of the Court):
The appellant sued the respondent in the High Court of Western Nigeria for a declaration of title to a piece of land known as Modeyin and an injunction to restrain acts of trespass. In his application for a writ of summons he is described as suing &for and on behalf of himself and members of his family”, and although the Rules of Court do not require it he brought a motion for leave to sue in a representative capacity, with a supporting affidavit and a copy of a resolution purporting to have been signed by ten persons and to authorise him as the head of the Ikota family to take any legal action he might deem fit in respect of their family land known as Modeyin. The motion was granted and pleadings were ordered. In his Statement of Claim the appellant asserted that he was the son of a member of the Ikota family called Adaja, and that he was descended in the male line from the original owner of the land. Abawonwi, and had succeeded his father’s brother, Adawolu, as head of the family though another of his father’s brothers named Alawiye had succeeded as Chief Lisa. The Statement of Defence denied that the appellant was the son of Adaja or a native of Ikota; it alleged that he was the son of one Oloyi of Ilara and not the head of a family at Ikota. One of the issues therefore was whether the appellant had any common interest with the members of the Ikota family, so as to entitle him to sue as representing the family.
The appellant gave evidence describing his pedigree as alleged in the Statement of Claim, but he called no member of the Ikota family to confirm it, and the witnesses he did call were not agreed as to the name of his father, or as to whether he was born at Ilara or Ikota. The evidence for the defence tended to show that the appellant was a native of Ilara, and the trial Judge held that the appellant had lied about the place of his birth and had failed to show that he was a member of the Ikota family. He dismissed the action.
On the evidence we agree with the Judge’s finding as to the appellant’s status. One of the witnesses for the defence said that the appellant was connected with the Ikota family through his mother, and it was submitted that that was sufficient to give him a common interest with the members of that family, but this case was never put forward in the court below and there was no evidence of the custom of Ikota as to the right to inherit through a female. We cannot, in the state of the evidence, accept this submission. and the appellant must fail in his action. It has, however, been pointed out that the Judge did not expressly reject the evidence tending to show that the land belonged to the Ikota family, and that although on his finding as to the appellant’s status the action could not succeed, an order dismissing the action might in the future prejudice the rights of the family if someone properly qualified to do so wished to assert them. We think there is substance in this submission, and the judgment of the court below will be varied by substituting an order non-suiting the appellant for the order dismissing the action. The order for costs made in the court below will be left undisturbed, and as the appellant has failed in the most important part of his appeal the respondent must have costs of the appeal assessed at 23 guineas.
ONYEAMA, J.S.C.: I concur.
AJEGBO, J.S.C.: I concur.
Appeal allowed in part.
Order of non-suit substituted