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8TH MARCH, 1968.

SUIT NO. SC.686/65.

3PLR/1968/16  (SC)














Babalakin – for the Defendant/Appellant

Lajide – for the Plaintiffs/Respondents



PRACTICE AND PROCEDURE – Actions – Defendants sued in personal capacity – 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.



LEWIS, J.S.C.: (Delivering the Judgment of the Court):

The appellant in this appeal was substituted as defendant In Suit No. 1179/59 where Oyemade J. In the Ibadan High Court on the 18th April 1962, gave judgment with costs for the plaintiffs as follows:-

“Declaration of title according to native law and custom in respect of the piece of land shown on the plan exhibit A and thereon edged red; there will also be judgment for the sum of £37:10:0 being arrears of Ishakole payable by the defendants.

The claim for forfeiture is non-suited.”

The amended Writ of Summons as set out in his judgment by the learned trial Judge had read as follows:-

  1. Declaration of title to the piece of land in Afunimogbo area at Ode-omu in Oshun Division.
  2. Forfeiture of the defendant’s rights and Interest in the farmland situate and lying at Afunimogbo Ode-omu, which was originally granted by the plain-tiffs to the defendants and which is shown on the plan to be filed later.
  3. £37:10:0d being arrears of Ishakole payable by the defendants to the plain-tiffs on the said farmland and which the defendants have failed to pay in spite of repeated demands.”

Whilst the plaintiffs, according to the Statement of Claim, sued on behalf of themselves and members of the Oka Bale Ode-Omu family (leave to do so in a representative capacity having been granted though in our view this was unnecessary for a plaintiff under order 7, rule 9 of the Western Nigeria High Court (Civil Procedure) Rules, as has been previously indicated by this court), the original two defendants and the present appellant who was by order of the court substituted for them on their death were, according to the Writ and to the heading of the Statement of Claim, sued In a personal capacity. Paragraph 4 of the Statement of Claim, however, read:

‘The defendants are sued on behalf of themselves and on        behalf of the Akintunde Family of Ode-Omu”,

and paragraph 1 of the Statement of Defence admitted, amongst other paragraphs, this paragraph 4 in the Statement of Claim. Nonetheless, Mr. Babalakin for the defendant/appellant took as his first ground of appeal that:-

“(c)The learned trial Judge erred in law to have given judgment for the whole land shown on ex. ‘A’ in the absence of an order to defend the suit in a representative capacity.”

He rolled on rule 9 of order 7 of the Western Nigeria High Court (Civil Procedure) Rules as, in his submission, requiring an order to be made enabling the defendant to defend in a representative capacity If the Akintunde family were to be bound and k was not disputed that no such order was either sought or granted. Moreover, rule 2 of order 2 of those rules required the Writ to be endorsed in a representative capacity If the defendants were to be so sued and it was not disputed that this was not done. Nevertheless, having regard to the defendant’s own admission on his pleading that he was sued in a representative capacity on be-half of the Akintunde family, the way in which his defence at the hearing was con-ducted 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 Akintunde family, and also to the fact that no objection was even taken in the address of the defendant’s counsel to the learned trial Judge in regard to this point, we are of the view that he is now too late to raise the issue on appeal that he was wrongly sued in a representative capacity without a court order and following the decisions of this court in Disu v. Daniel Kalio F.S.C. 216/1962 on the 7th March, 1964, and Aboudu Bulai and anor v. Chief Omoyajowo S.C. 667/65 of the 29th February, 1968, cannot therefore rely on the failure to obtain an order of the court to defend in a representative capacity in order for the decision of the court to bind the Akintunde family as opposed to the defendant personally. In our view, therefore, the judgment is against Lawani Ladipo Akintunde himself and the Akintunde family of Ode-Omu.

The real Issue between the parties was whether the land in question, which was admittedly given by the plaintiffs’ family to the family of the defendant, was given unconditionally or whether it was granted under a customary tenancy to pay annual Ishakole and to leave the palm trees on that land belonging to the family of the plaintiffs. Mr. Babalakin in this regard next argued two grounds of appeal together, namely:-

“(b)    The learned trial Judge erred in law in his interpretation of exhibit ‘H’ as payment of tribute to the Bale does not mean the same thing as payment of Ishakole, which is payable as between landlord and tenant”,


The learned trial Judge erred in law by upholding the claim of Ishakole, the relationship between the chiefs and their followers not being that of landlord and tenants.”

He sought to argue that as the defendants were refugees from Ife who had been re-settled on the land in 1909 by the then Bale of Ibadan and Council they were in a different position from an ordinary relationship of customary tenant to his over-

lord in that they did not pay an economic rent. This court however pointed out to him that the issue was whether they had to pay Ishakole, not whether they had to pay an economic rent and he then sought to submit that economic rent was to be equated with Ishakole. We see no foundation whatsoever in the evidence for such an equation and the learned trial Judge having carefully considered the evidence came to the conclusion that not only did the defendant in fact pay Ishakole but also did not reap palm fruits, and we see no reason to upset the finding of the learned trial judge in this regard.

The next ground of appeal argued was that:-

“(d)   The learned trial Judge erred in law by not dismissing the claim for forfeiture.”

Mr. Babalakin submitted that the learned trial Judge should not have non-suited the plaintiffs but dismissed their claim for forfeiture. When, however, this court put to him that his client was really fortunate in this respect as he had denied, on the learned trial judge’s finding, his overlord’s title and was therefore liable to suffer forfeiture rather than only for the plaintiffs to be non-suited, he conceded that this was so If this court was against him, as we have Indicated in this judgment that we are, on his submission that the defendant was not liable to pay Ishakole. There was no substance accordingly in this ground of appeal.

Finally Mr. Babalakin argued that the judgment could not be supported having regard to the weight of evidence and that the learned trial Judge failed to give sufficient consideration to the defence, but subject to the question of the award of £37:10s;Od as arrears of Ishakole payable by the defendants we see no merit on these grounds. So far, however, as the award of £37:10s:0d was concerned, Mr. Babalakin submitted that there was no evidence in the record as to how this sum was arrived at as the only real reference to the matter was the evidence of the sec-ond plaintiff when he said:-

“Akintunde paid Isakole to Oke, and Lawumi but refused to pay since Adeyemo became the Bale. Adeyemo died about 17 years ago.”

In his submission whilst this showed that no Ishakole had been paid for at least 17 years, it did not establish for how long it had not been paid as there was no evidence as to how long before this 17 years Adeyemo in fact became Bale. Mr. Lajide, for the respondents, initially asked us to hold that the arrears of Isakole were assessed on the basis of what was owing for 17 Years but as this was never established as the basis of how £37:10s:0d as claimed was arrived at we do not consider that we can do so and he rightly, in our view conceded that otherwise there Is no evidence on the point. We must accordingly allow the appeal in this regard and we order that the judgment of the learned trial judge ordering that £37:10s:0d be paid by the defendant to set aside.

As the appeal has, save as to the award of £37:10s:0d., failed we do not alter the award of £190:18s:0d costs in the High Court to the plaintiffs by the learned trial Judge, but the defendant/appellant, albeit having succeeded in only one aspect, is entitled to costs in this court which in the circumstances we assess at 40 guineas.

Appeal dismissed.


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