3PLR – ADISA AND ORS V. ATTORNEY GENERAL KWARA STATE AND ORS.

Published by Law Nigeria Admin at October 4, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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ABDULRAHAMAN ADISA AND ORS

V. ATTORNEY GENERAL KWARA STATE AND ORS

IN THE COURT OF APPEAL

[ILORIN DIVISION]

18TH OCTOBER 2001

CA/IL/101/99

3PLR/2001/25(CA)

OTHER CITATIONS

14 WRN 99

BEFORE THEIR LORDSHIPS:

MURITALA AREMU OKUNOLA, JCA (Presided and delivered the leading judgment)

PATRICK IBE AMAIZU, JCA

WALTER SAMUEL NKANU ONNOGHEN, JCA

REPRESENTATION

Alhaji Aliyu Alarape Salman SAN with Messrs Salman A. Salman, Idris Ojibara and Miss Nkechi Okafor, for the appellants.

Mr Titus Ashaolu Hon. Attorney-General (Kwara State) with Mrs Funsho Lawal (DCL Kwara State) for the 1st and 2nd respondent.

Mr. Yusuf Ali SAN with Messrs K.K.Eleja, S. A. Oke and R.O. Balogun, for the 3rd respondent.

MAIN ISSUES

PRACTICE AND PROCEDURE – COURT – Supreme Court – attitude to procedural technicalities.

JUDGMENT AND ORDER – Relief not sought by parties – whether court is competent to grant same.

PRACTICE AND PROCEDURE – Action instituted in a representative capacity – whether failure of plaintiff to endorse on the writ that the writ is being taken out in a representative capacity invalidates the action.

PRACTICE AND PROCEDURE – Representative action – party defaults in endorsing the representative nature of the suit on the writ of summons – proper order for trial court to make.

MAIN JUDGMENT

MURITALA AREMU OKUNOLA, JCA. (Delivered the following judgment):

This is an appeal against the interlocutory ruling of the Kwara State High Court, holden at Ilorin presided over by Ibiwoye J. delivered on 22/9/97 wherein the Court set aside its earlier ruling of 19/7/93 on a motion ex-parte in which the plaintiffs/respondents were granted leave to sue in representative capacity for themselves and on behalf of others. The facts of this case briefly put were as follows:

The Defence Industries Corporation needed land at Jebba in Kwara State and the Government of Kwara State acquired land for them and they paid a huge compensation to the occupiers of the acquired land for economic trees. The compensation was paid to the 2nd defendant/respondent for onward transmission to the occupiers by the Defence Industries Corporation. It was then the 3rd defendant/respondent rose up and claimed that he was the sole owner of the land acquired and he approached the 2nd defendant/respondent to pay all the compensation to him alone. 20 farmers who heard about the movement of the 3rd defendant/respondent and who claimed that they are the right persons to be paid the compensation approached their lawyers for advice and they decided to sue the defendants/respondents to prevent the 1st and 2nd defendants/respondents from paying the compensation to the 3rd defendant/respondent.

The 20 farmers then gave authority to 5 of them to sue in a representative capacity on their behalf and their lawyer sued the defendants/respondents without endorsing on the writ that the 5 were suing in a representative capacity.

The counsel for the 20 occupiers brought a motion ex parte before the court for leave for the 5 representatives to sue in a representative capacity. The motion dated 29/6/93 and filed on 1/7/93 was heard, decided on 19/7/93 and the court granted the prayer and thereby allowed the 5 representatives to sue in a representative capacity. The suit went to hearing, the plaintiffs called witnesses which were cross-examined and the plaintiffs/appellants closed their case on 12/5/97 and the suit was adjourned to 3/7/97 for defence. Before the date for defence the learned state counsel filed motion on notice on 5/6/97 on behalf of the 1st and 2nd defendants/respondents praying that the ruling of 19/7/93 be set aside. The court agreed with him and set its ruling earlier given aside on 22/9/97, four years after the ruling. In the said ruling, the trial court found that failure to endorse the representative capacity in which the appellants (as plaintiffs) were suing on the writ of summons and other processes as well as failure to serve the representatives (as defendants) with the relevant order of the court to sue in representative capacity was fatal to the case. The court further held that the suit was badly constituted and therefore granted all the prayers on the motion paper.

Dissatisfied with this ruling, the plaintiffs/respondents to the motion (hereinafter referred to as plaintiffs/appellants) appealed to this court on 3 grounds. From the 3 grounds of appeal the appellants herein had formulated two issues for determination in this appeal, namely:

Whether the failure of the plaintiffs/appellants to endorse on their writ that they were suing in a representative capacity renders the suit incompetent, null and void.

Whether the learned trial Judge was correct in upholding the submission of the learned defence counsel that the plaintiffs/appellants have separate and distinct interests and therefore their suit is badly constituted null and void.

On page 2 of the 1st and 2nd respondent’s brief, the 1st and 2nd respondent’s counsel noted that the interlocutory notice of appeal dated 29/9/97 has 3 grounds which are of mixed law and fact. According to learned counsel, the notice of appeal is also not on a final decision of the trial court. He then stated that the defendants/respondents intended to raise by way of preliminary objection that the grounds of appeal are incompetent it having been filed without the required leave provided under section 220(1) of the Constitution of Federal Republic of Nigeria 1979. He gave the notice of preliminary objection thus:-

Notice of Preliminary Objection

Take notice that the 1st and 2nd defendants/respondents intend at the hearing of this appeal to raise by way of preliminary objection that grounds I, II AND III of the grounds of appeal are of mixed law and fact, for which leave of the trial court or this honourable court is required under section 220(1)(b) of the Constitution of the Federal Republic of Nigeria, 1979 and the said leave was neither sought nor obtained. The respondents shall pray that all the grounds be struck out for being incompetent.

Ground of Objection

(a) The learned trial Judge gave his ruling in this appeal on 22/9/97

(b) The appellants failed, refused or neglected to seek leave as required under section 220(1)(b) of 1979 Constitution before filing the notice of appeal dated 29/9/97.

In a similar breath the 3rd respondent’s counsel also gave a notice of preliminary objection at page 3 of the 3rd respondent’s brief thus:-

The 3rd respondent shall at the hearing of the appeal raise objection to the competence of the appeal on the following grounds.

The appeal is incompetent for reason of failure of the appellant to seek nor obtain the requisite leave of the honourable court before the notice of appeal was filed.

There is no clear relief on the notice of appeal.

Grounds of appeal Nos. 4 and 5 are abandoned by the appellants for the reason of their failure to formulate any issue to cover them.

Grounds 1, 2 and 3 of the grounds of appeal are incompetent as the particulars are at variance with the grounds of appeal to which they are subjoined.

Before proceeding with this appeal it is necessary to consider the submissions of counsel to the parties in respect of the two notices of preliminary objections filed by learned counsel to 1st and 2nd respondents and the 3rd respondent. On the 17/9/01 when this appeal came up for hearing, Alhaji Salman SAN adopted and relied on both the appellants’ brief and the appellants reply brief filed herein on 14/4/98 and 5/6/2001 respectively. Mr. Ashaolu A-G Kwara State adopted the 1st AND 2nd respondents brief filed on 2/6/98 while Yusuf Ali SAN also adopted the 3rd respondent’s brief filed herein on 21/5/2001 for both the appeal and arguments on the notices of preliminary objection raised.

On additional grounds 4 AND 5 learned counsel to the 3rd respondent submitted that in the appellants brief both grounds were not covered by any issue as can be seen on page 8 of the said brief. At paragraph 5 of the brief, issue 1 distilled by the appellants covers grounds 1 AND 2 while issue No. 2 covered ground 3 of the grounds of appeal. Learned counsel submitted that where a ground of appeal is not covered by any issue for determination such a ground is deemed abandoned and is haste to be struck out. By way of reply learned counsel to the appellants in the appellants reply brief filed herein on 5/6/01 which he adopted and relied upon in this court did not oppose this submission. I have considered the position of both learned counsel on this issue viz-a-viz the records and the prevailing law, in my view additional grounds 4 AND 5 not being covered by any issue for determination are accordingly deemed abandoned and are liable to be struck out. In consequence additional grounds 4 AND 5 are hereby struck out. See Phoenix Motors Ltd. v. Ojewumi (1992) 6 NWLR (Pt. 248) 501 at 510; Megwalu v. Megwalu (1994) 7 NWLR (Pt. 359) 718 page 729.

On grounds 1, 2 AND 3 learned counsel to the 1st and 2nd respondents submitted by way of summary on page 4 of the 1st and 2nd respondents briefs that grounds I, II and III are ex facie those of mixed law and fact of which leave is required and of which no leave was sought nor obtained before filing. In the same breath learned counsel to the 3rd respondent on page 13 of the 3rd respondent’s brief by way of summary submitted that the 3 original grounds of appeal are incompetent since the particulars sub joined to them are at variance with the grounds to which they are joined. By way of reply learned counsel for the appellants submitted in paragraph 3.02 of the appellant’s reply brief that all the grounds of appeal filed are competent as necessary leave was sought and none of the particulars as canvassed by the 3rd respondent’s counsel are at variance with the grounds sub joined. On the issue of leave which the 3rd respondent’s counsel said was not sought, learned counsel to the appellants on page 2 paragraph 3.04 of the appellant’s reply brief referred to the order of this honourable court made on 2nd February 2001 consequent on an application brought pursuant to section 242(1) 1999 Constitution, section 25(4) Court of Appeal Act 1979 and order 3 rules 3(4) and 4(1) of the Court of Appeal Rules wherein the Court granted the application dated and filed on 9th August, 1999.

I have considered the submission of both learned counsel to the parties on this issue of leave vis-à-vis the records and the prevailing law. It was discerned from the records that the motion paper referred to above sought the following orders which for clarity of purpose are hereunder reproduced.

“(i) For an extension of time within which the appellants can apply for leave to appeal against the ruling of Honourable Justice Ibiwoye of the Kwara State High Court Ilorin Division, delivered on the 22/9/97 in suit No. KWS/122/97.

(ii) For an extension of time within which to appeal against the said ruling

(iii) For leave to appeal against the said ruling.

(iv) For leave to appeal against the said ruling on grounds other than of law.

(v) For leave to file additional grounds of appeal

(vi) An order to deem as filed and served all processes including records of proceedings and brief of argument previously filed and served.

(vii) For such further or other orders as the honourable court may deem fit to make in the circumstance.”

It is on record that the motion was duly supported by an affidavit of 19 paragraphs deposed to by one Abdulrahaman Adisa one of the appellants. Also in support of the motion was a further affidavit filed on 24th September, 1999 deposed to by one Bola Hanafi with two annextures as exhibit A, the notice of appeal and exhibit B the ruling appealed against. It is also on record that S. U. Solagberu Esq. of Messrs Yusuf Ali AND Co. who filed a counter affidavit on 1st February, 2000, represented the 3rd respondent. The 16 paragraph counter affidavit was deposed to by one Ahmed Akanbi Esq. also of Messrs Yusuf Ali AND Co. It is also on record that on 22/2/2000 when the said motion came up for hearing, the 3rd respondent’s counsel who did not oppose the application withdrew the counter affidavit filed. In a similar vein it is also on record that counsel for the 1st and 2nd respondents did not also oppose the application and the prayers sought were accordingly granted by this honourable court. This fact was confirmed by Ali SAN in his submission after adopting and relying on the 3rd respondent’s brief of argument when the learned SAN abandoned this line of objection in paragraphs 3.01 – 3.06 of the brief and relied on those contained in paragraphs 3.02 to 3.22 of the brief.

In the light of the foregoing, it is clear that necessary leave of this honourable court in respect of grounds I, II and III, was sought and granted to the appellant. Consequently the 1st line of 3rd respondent’s preliminary objection fails. In the same vein the notice of preliminary objection in 1st and 2nd respondent’s briefs of argument dated 2nd June 1999 has also been overtaken by events since the objection had earlier been taken in suit CA/IL/40/99 which was struck out as a result of the preliminary objection. The brief had since been filed and served in this appeal by order of this court granted on 22/2/2000. However, since leave had been granted to the appellants as reiterated (supra) the objection of 1st and 2nd respondents also fail and I so hold.

As regards the last line of the 3rd respondent’s preliminary objection that the particulars are not at variance with the grounds I have considered the submission of both learned counsel to the 3rd respondent and the appellants viz-a-viz the records and the prevailing law. I have also examined the particulars subjoined to each of the grounds. In my view, the purpose of the particulars is to bring to light the nature of the appellants’ complaint. In the instant case, I observed the particulars on each ground flows from the grounds they are subjoined to and in no way at variance with the ground subjoined as adumbrated on the notice of appeal.

In my view the relief sought by the appellants is in accordance with the rules of court hence the objection raised on it cannot stand. On the whole the objection on grounds I, II AND III fails and it is accordingly struck out.

I shall now address the submission of the learned counsel to the parties on the substantive appeal. As reiterated (supra) learned counsel to the appellants Alhaji Aliyu Alarape Salman SAN leading Messrs Salman A. Salman, Idris Ojibara and Miss Nkechi Okafor after adopting and relying on the appellants brief and the appellants reply brief filed herein on 14/4/98 and 5/6/2000 respectively drew the court’s attention to paragraphs 3.04, 3.05, 3.07-3.09 and 3.21 of the appellants reply brief. Learned counsel also cited an additional authority in the appellants’ brief – Chief Gordon Joe Young Jack AND 2 Ors Chief R. I. Whyte AND 5 Ors (2001) 17 WRN 109; (2001) 4 S.C 35holding to the effect that failure to obtain leave to sue in representative capacity will not matter in certain circumstances. Learned counsel further submitted that the representative capacity can be inferred from the records. He finally urged the court to allow the appeal and set aside the ruling of the lower court.

By way of reply learned leading counsel to the 1st AND 2nd respondents Mr Titus Ashaolu A-G (Kwara State) with whom was Mrs Funsho Lawal the states’ Director of Civil Litigation adopted the 1st and 2nd respondent’s brief. The Honourable A-G submitted that the case of Young Jack cited by the learned SAN is not relevant to the instant case particularly when the interests of the parties are not the same. Learned counsel urged the court to dismiss the appeal.

In his own reply, learned counsel to the 3rd respondent Mr Yusuf Ali SAN leading Messrs K.K. Eleja, S.A. Oke and R.O. Balogun adopted and relied on the 3rd respondents brief filed herein on 21/5/2001. Learned SAN submitted that Young’s case cited (supra) by the appellants’ counsel is inapplicable to the instant case for the following reasons:

That the rule interpreted in Jack’s case is not in pari materia with order 11 rule 7(1) of the Rules of Kwara State High Court interpreted in the instant case – which enjoins that the capacity must be expressed on the writ. The case was struck out as the capacity was not so expressed on the writ.

That the decision in Jack’s case has to do with the failure to seek leave to sue in representative capacity and not with failure to express that leave on the originating summons (i.e. the writ) There are authorities from the appellate courts that failure to ask for leave is not fatal but failure to endorse the capacity on the writ is fatal.

Unlike in Jack’s case the objection to capacity was not raised but in the instant case the objection was timeously raised.

Learned counsel to the 3rd respondent referred to the case of Adewunmi v. A.G, Ondo State (1996) 8 NWLR (Pt. 464) 73 page106 paragraphs D-H which is in pari materia with this case and the order is similar to this order under review.

Learned counsel contended that it was held in Adewunmi’s case that where the capacity is not endorsed on the writ same should be set aside. Learned SAN submitted that that is the position in the instant case since objection was taken timeously. Learned counsel urged the court to uphold the ruling of the lower court and dismiss the appeal. Learned counsel further urged the court to dismiss the appeal on the constitution of the court which was bad. On being asked whether he had anything to add, learned counsel to the appellants replied in the negative.

I have considered the submissions of the three learned counsel to the parties viz-a-viz the records and the prevailing law.

In my view the submissions of learned counsel to the parties boil down to the principal issue titled issue No.1 – whether the failure of the plaintiffs/appellants to endorse on their writ that they were suing in a representative capacity renders the suit incompetent null and void. As reviewed (supra) learned counsel to the appellants answer this poser in the negative while both learned counsel to the 1st AND 2nd respondents and the 3rd respondent answer the poser in the affirmative. To determine which of the two sets of submissions is in line with the current legal position in the country it will be necessary to have a recourse to the records vis-à-vis the prevailing law. The starting point in this direction is the examination of the motion which led to the ruling, the subject of this appeal. This is contained in page 126 of the records. The motion sought among others for the following order:

“To set aside the order made on motion ex parte on 19th day of July, 1993.”

The reason for the above order was succinctly put in paragraph 4 of the affidavit in support of the motion at page 127 of the records as follows:

“(4) That I was informed by S.F. Ajayi Esq., of counsel handling this suit during official briefing in his office at 8.30a.m on 23rd day of May, 1997 and I verily believe him as follows:

(c) That on 3/4/97 during the trial of this suit, the plaintiff’s counsel brought to his notice that there is a subsisting order got on an ex parte motion on 19th day of July, 1993.

(d) That the said order is germane to this suit and was not contained in the motion on notice served on him later.

(d) That it is just and proper for all the defendants/applicants to know the plaintiffs/respondents in the present suit.

(e) That as the action is presently constituted anybody can claim through the plaintiff.

(f) That the defendants/applicants is (sic) not ready to waive his (sic) right in this respect.

At this juncture it is necessary to examine the order which the 1st and 2nd respondents sought to discharge. This is contained in page 16 of the records. It goes thus:

“It is hereby ordered that the application for leave of this honourable court to the plaintiffs/applicants to sue on their behalf and on behalf of other plaintiffs is hereby granted as prayed.”

From the above stated paragraph 4 of the supporting affidavit, it is discernible that the motion to set aside is predicated on the ground that a copy of the order made on the motion ex parte was not served on them – vide page 158 of the record where the learned trial Judge averred thus:

“By the present motion on notice filed on 5/6/97 the learned state counsel for the 1st and 2nd defendants/applicants is praying the court to set aside the order quoted above on the ground that the 1st and 2nd defendants have not been served with the order of the court obtained on a motion ex parte on 19/7/93”

However, despite the fact that the court found that the allegation that the 1st and 2nd defendants were not served with the order of 9/7/93 has not been denied, the lower court resolved to base its ruling not on the ground of none service of the court order made ex parte on the 1st AND 2nd respondents but rather on non compliance with the provisions of order 11 rule 7(l) of the High Court (Civil Procedure) Rules 1989 of Kwara State which provides thus:

“7(1) If the plaintiff sues, or any defendant counter claims, in any representative capacity it shall be expressed on the writ.”

The question raised here is whether the ground of non endorsement of the capacity in which the appellants sued the respondents on the writ of summons is the same with or similar to non service of the ex parte order on the 1st AND 2nd respondents being the ground upon which the relief of setting aside is predicated. I answer this power in the negative. This is moreso since the application before the lower court was that the appellants failed to comply with the provision of order 11 rule 7 of the Kwara State High Court Rules and I so hold. Learned counsel to the 1st AND 2nd as well as the 3rd respondents relied on Adewunmi’s case (supra) to submit that non-endorsement of the appellants’ capacity on the writ of summons can invalidate the leave to sue in a representative capacity earlier granted by the court. Learned counsel to the appellants answered this poser in the negative. I have considered the arguments of both sets of counsel vis-à-vis the records and the prevailing law; it can be seen that the complaint against non compliance with order 11 rule 7(1) of Kwara State High Court Rules (supra) (hereinafter referred to as the Kwara State Rules) is a complaint against the form of the writ of summons in an action in a representative capacity. This amounts to a defect as to the form of a writ. That being the case, non compliance with the rules ought not be fatal to the case to invalidate the writ. This is because such an omission or mistake is now treated as irregularity which may be rectified so long as no prejudice is thereby occasioned. According to the apex court this is the purpose of the new rules in court which are designed to enhance the quality of dispensation of justice. See Odu’a Investment Company Ltd v. Joseph Taiwo Talabi (1997) 10 NWLR (Pt. 523) 1; (1997) 7 SCNJ 600. In the instant appeal, when Ajayi Esq., of counsel raised the issue of non compliance with the provision of order 11 rule 7 of the Kwara State High Court (Civil Procedure) Rules relating to enforcement of capacity on the writ, the learned trial Judge should have suo motu ordered the appellants to reflect the order he made in 1993 as directed by the Supreme Court in Chief Meburami Akinnubi AND Anor. v. Grace Olanike Akinnubi (Mrs) AND Ors. (1997) 1 SCNJ 202 wherein the apex court held that the capacity in which plaintiff sues can be amended suo motu by the court. The court held further that such an amendment carried out by the appellate court was in order. An amendment can be effected before judgment or even on appeal. Since leave to sue in a representative capacity had been earlier granted by the lower court, it is for the lower court to have requested the appellants to endorse same on the writ in compliance with order 11 rule 7 of the Kwara State Rules in line with the Supreme Court decision in Akinnubi’s case (supra). The learned trial Judge having failed to do so did not render the earlier leave granted void moreso as the endorsement can be done any time before judgment and even on appeal.

The Supreme Court had on several occasions warned on technicalities viz-a-viz procedural irregularities. Thus in A-G, Bendel State v. A-G, Federation (1981) 10 S.C 1 the court held thus:

“The court will do justice in any case that comes before it and will not be deterred by objections raised on technicalities particularly where such objections relate to procedural irregularities which are curable.”

The apex court had gone further to define the purpose of rules of court in the administration of justice in I.B.W.A Ltd. v. Imano Nig. Ltd (2001) 17 S.C WRN 1 in the following terms.

“The whole purpose of rules of court is to ensure that the affairs of court are carried out in an orderly fashion with reasonable degree of certainty that prescribed acts have been duly complied with by parties in the interest of justice. Obviously interest of justice will frown on the parties and the court being enslaved to rules which are intended to promote justice, they should not as it were, make round-about turns and constitute themselves engines that would impede the promotion of justice.”

In the light of the foregoing authorities, since the trial Judge fail to allow necessary amendment for the appellants to endorse the leave granted on the writ, this principal issue is resolved in favour of the appellants.

On the subsidiary issue as to whether the learned trial Judge was correct in upholding the submission of the learned defence counsel that the plaintiffs/appellants have separate and distinct interests and therefore that suit is badly constituted, I have considered the submissions of learned counsel to the parties on this issue viz-a-viz the records and the prevailing law. From the motion paper, it can be seen that the holding that the suit was badly constituted does not arise and was not borne out of the motion under consideration. It is trite that it is not competent for a court to grant a relief not sought as court lacks power to grant more than claimed even though it may grant less. See Chief Eyo Ogboni Ors. v. Chief Oja Ojah AND Ors. (1996) 6 NWLR (Pt. 454) 272; (1996) 6 SCNJ 140; Alhaji Ubar Kari v. Alhaji Isa Abba Ganaram AND Ors. (1997) 2 NWLR (Pt. 488) 380; (1997) 2 SCNJ 38; Ikeanaeke Ezeakabekwe AND Ors. v. Julius Emenike (1998) 11 NWLR (Pt. 575) 529; (1998) 9 SCNJ 58. In the light of the foregoing authorities this subsidiary issue is resolved in favour of the appellants.

Since both issues are resolved in favour of the appellants, this appeal is meritorious and it is allowed. The ruling of the lower court is hereby set aside. Case is remitted to the Chief Judge of Kwara State for retrial before another Judge in the same jurisdiction. Costs N2,000.00 is awarded against each set of respondents.

PATRICK IBE AMAIZU, JCA.:I have had the privilege of reading in draft, the judgment just read by my learned brother, Okunola J.C.A. I agree with his reasoning and conclusion that the appeal has merit. It is however my desire to add a few comments of my own. The claim of the appellants as is contained in the amended statement is as follows –

“1. A perpetual injunction against the 2nd defendant stopping him from paying the undisclosed compensation to the 3rd defendant or his family or agent.

An order that the compensation be paid to the plaintiffs enumerated.”

It is to be noted that the averments in support of the above claim are that –

The appellants are from Igbelowowa village.

The village owns the land which was acquired by the government and all the economic trees thereon.

The 2nd respondent advised that the compensation in respect of the enumerated crops should be paid to the 3rd respondent.

It is clear from the above averments that the people of Igbelowowa village have a common interest which is that, the 2nd respondent should not pay the undisclosed compensation to the 3rd respondent and or his family. As the people of Igbelowowa have a common grievance, those they selected can bring an action on their behalf.

From the records, the appellants had closed their case. Further hearing was adjourned to enable the respondents open their case and call witnesses. It was then that the respondents brought their motion on notice praying the court –

To set aside the order made in the motion ex parte on the 10th day of July 1993.

And for any order or other orders which this court may deem fit to make in the circumstances.”

I pause here to observe that the averments in the affidavit in support of that motion –

“(d) That it is just and proper for the defendants/applicants to know the plaintiffs/respondents on the present suit.

(e) That as the action is presently constituted anybody can claim through the plaintiffs.”

are patently misleading. This is because exhibit A in the affidavit in support of the ex parte motion by the appellants to sue in a representative capacity contains the names of the village heads of Igbelowowa are the real plaintiffs.

From the above facts, it is my considered view that when Ajayi, Esq., of counsel, raised the issue of non compliance with the provisions of order 11 rule 7 of the Kwara State High Court (Civil Procedure) Rules, the learned trial Judge should have ordered the appellants to make the necessary amendments to reflect the order he made in 1993. This is because it is the duty of every court to aim at doing substantial justice between the ties and not let that aim be turned aside by technicalities. See Divisional Chief Gbogbolulu of Vakpo v. Head Chief Hodo of Anfoega Akukome (1941) 7 WACA 164.

For the above reasons and others marshalled out in the lead judgment, I also allow the appeal. I abide by the consequential orders made in the lead judgment, including the order as to costs.

WALTER SAMUEL NKANU ONNOGHEN, JCA:I have had the opportunity of reading in draft the lead judgment of my learned brother Okunola, J.C.A., just delivered.

I agree with his reasoning and conclusion that the appeal has merit and should be allowed. The facts of the case have been stated in the said lead judgment hence I do not intend to repeat them here except as needed to emphasis the point being made.

There are two primary issues that call for determination in this appeal. These are, in my opinion;

(a) Whether the failure of the appellants to endorse on the processes filed, the capacity in which the action was instituted at the stage of the proceedings when the motion resulting in this appeal was heard is fatal to the action, and

(b) Whether the learned trial Judge is right in holding that the action is badly constituted and therefore null and void in view of the application before him.

The motion which gave rise to the ruling resulting in this appeal is the record and it prays the court for an order inter alia:

“(1) To set aside the order made on motion ex parte on the 19th day of July, 1993.”

While the reason for the order is contained in paragraph 4 of the affidavit in support at page 127 of the record, viz:-

“(4) That I was informed by S.F. Ajayi Esq. of counsel handling this suit during official briefing in his office at 8.30 am on 23rd day of May, 1997 and I verily believe him as follows:

(a) That on 3/4/97 during the trial of this suit, the plaintiff’s counsel brought to his notice that there is a subsisting order got on an ex parte motion on 19th day of July, 1993.

(b) That the said order is germane to this suit and was not contained in the motion on notice served on him later.

(d) That it is just and proper for all the defendants/applicants to know the plaintiffs/respondents in the present suit.

(e) That as the action is presently constituted anybody can claim through the plaintiff.

(f) That if the defendants/applicants is (sic) not ready to waive his (sic) right in this respect.

The order which the 1st and 2nd respondents wanted discharged as at page 16 of the record and is inter alia as follows:

“It is hereby ordered that the application for leave of this Hon. court to the plaintiffs/applicants to sue on their behalf and on behalf of other plaintiff is hereby granted as prayed.”

It is very clear from the content of the affidavit in support of the motion to set aside that the primary reason why the applicants sought the order is that a copy of the order made on the motion ex parte was not served on them – see page 158 of the record where the learned trial Judge stated as follows;

“By the present motion on notice filed 5/6/97 the learned state counsel for the 1st and 2nd defendants/applicants is praying the court to set aside the order quoted above on the ground that the 1st and 2nd defendants have not been served with the order of the court obtained on a motion ex parte on 19/7/93.”

However, even though the court found that “the allegation that the 1st and 2nd defendants were not served with the order of 19/7/93 has not been denied” it failed to consider the person whose responsibility it is to carry out the service. That apart, the lower court proceeded to decide the matter not on the ground of non service of the court order made ex parte on the 1st and 2nd respondents but on non compliance with the provisions of order 11 rule 7(1) of the High Court (Civil Procedure) Rules 1989 of Kwara State High Court which provides as follows:

“7(1) If the plaintiff sues, or any defendant counter claims, it shall so be expressed on the writ.”

It is my considered opinion that the ground of non endorsement of the capacity in which the appellants sued the respondents on the writ of summons is very different from non service of the ex parte order on the 1st and 2nd respondents being the ground on which the relief of setting aside the ex parte order was sought.

That apart, it is also my considered opinion that a non endorsement of the appellant’s capacity on the writ of summons cannot invalidate the leave to sue in a representative capacity earlier granted by the court; particularly since that error can be remedied at any time before judgment and in an appropriate case even on appeal after judgment, by an application for leave to amend the processes to reflect the legal status conferred on the appellants by virtue of the ex parte order for leave to sue in a representative capacity. This is trite law. It must be noted that the complaint before the lower court was not that the appellants failed to comply with the provisions of order 11 rule 7 of the Kwara State High Court Rules.

In any event, it is my considered opinion that a complaint against non compliance with order 11 rule 7(1) supra is complaint against the form of the writ of summons in an action instituted in a representative capacity: that is defect as to form of writ. That being the case, non-compliance ought not to be fatal to the case. In the present case on appeal the learned trial Judge in effect brought the appellants’ case to an end after granting the application by not adjourning the matter to any date for hearing. The case in effect, came to an end.

The second ground on which the lower court granted the application resulting in this second issue in this appeal does not arise at all from the application before the lower court. It was not one of the grounds raised by the applicants. That apart, the then learned counsel for the 3rd respondent who raised the issue in his address did not file a motion praying for the suit to be dismissed or struck out on the ground that the appellants have separate and distinct interest thereby rendering their suit badly constituted, null and void as argued by the learned counsel and agreed upon by the learned trial Judge. It is the law that a party is not allowed to take his opponents by surprise.

By holding that the suit was badly constituted and therefore null and void, the lower court went beyond the prayer before it and pronounced on the validity or otherwise of the suit. This is not permitted by law. The view that the learned trial Judge did determine the substantive matter before him while considering an interlocutory matter is confirmed by the record in that no adjourned date was given after the proceedings of 22/9/97 when the ruling of the court was delivered.

For these and other reasons given in the lead judgment of my learned brother Okunola, J.C.A. I too allow the appeal and abide by the consequential orders made therein including the order as to costs.

Appeal allowed.

Cases referred to in the judgment

A.G., Bendel State v. A.G., Federation (1981) 10 S.C. 1.

Adewunmi v. AG., Ondo (1996) 8 NWLR (Pt. 464) 73.

Akinnubi v. Akinnubi (1997) 1 SCNJ 202.

Gbogbolulu v. Hodo (1941) 7 WACA 164.

I.B.W.A. v. Imano Nig. Ltd. (2001) 17 WRN 1.

Ezeakabekwe v. Emenike (1998) 11 NWLR (Pt. 575) 529;(1998) 9 SCNJ 58.

Jack v. Whyte (2001) 17 WRN 109; (2001) 4 S.C. 35

Kari v. Ganaram (1997) 2 NWLR (Pt. 488) 380; (1997) 2 SCNJ 38.

Megwalu v. Megwalu (1994) 7 NWLR (Pt. 359) 718.

Odu’a Investment Company Ltd v. Talabi (1997) 10 NWLR (Pt. 523) 1; (1997) 7 SCNJ 600.

Ogboni v. Ojah (1996) 6 NWLR (Pt. 454) 272; (1996) 6 SCNJ 140.

Phoenix Motors Ltd. v. Ojewumi (1992) 6 NWLR (Pt. 248) 501.

Statutes referred to in the judgment

Constitution of the Federal Republic of Nigeria, 1979 s.220(1).

Constitution of the Federal Republic of Nigeria, 1999 s. 242.

Court of Appeal Act, 1979 s. 25(4).

Rules of court referred to in the judgment

Court of Appeal Rules or. 3. rr. 3(4) AND 4(1)

Kwara State High Court (Civil Procedure) Rules 1989 or. 11 r.7.