In Re: Afolabi

18
In Re: Afolabi
26 October 1987

OLAITAN DAIRO

V.

RAUFU GBADAMOSI

IN RE: ALHAJI LAMIDI AFOLABI

COURT OF APPEAL

(IBADAN DIVISION)

CA/I/M.219/86

UCHE OMO, J.C.A. (Presided)

MICHAEL EKUNDAYO OGUNDARE, J.C.A. (Read the Lead Ruling)

IBRAHIM KOLAPO SULU-GAMBARI, J.C.A.

17TH JUNE 1987

APPEALS – By an interested party – Section 222 Constitution of Nigeria 1979. Whether a privy to one of the parties can be an interested party.

APPEALS – By an interested party – Section 222 Constitution of Nigeria 1979 – Leave to appeal – What applicant must show.

APPEALS – Leave to appeal – Interested party – Principles applicable.

APPEALS – Stay of execution – Granted to defendant by lower court – Appli cation by an interested party for another stay of execution at the Court of Appeal – Whether permissible.

APPEALS – Stay of execution – Granted by lower court on terms considered harsh by applicant – Seeks better terms from Appellate Court – Whether permissible.

Issue:

1.
Whether or not the applicant should be granted leave to appeal against this judgment as an interested party.

 2.
Whether once a stay of execution has been granted by a lower court, an applicant is precluded from seeking another order for stay of execution from an appellate court.

Facts:

In Suit No. 1/334/83, the plaintiff herein sued the defendant over a piece of land consisting of two building plots, claiming (a) declaration of title to a certificate of occupancy in respect of the said land situate at Olojuoro Road, Ibadan; (b) N15,000 general damages for trespass and (c) an injunction. By his statement of claim the plaintiff traced his root of title to Aleshinloye family to whom a large acreage of land including the land in dispute was surrendered by one S.B. Adewunmi following a settlement out of court of Suit No.

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1/288/64 involving the said Aleshinloye family and S.B. Adewunmi. The suit was withdrawn and consequently struck out. Sometime later the Aleshinloye family sold part of their land to one Madam Dorcas Ajirinmibi who, in 1977, sold and conveyed the land in dispute in Suit 1/334/83 to the plaintiff out of the portion sold and conveyed to her by the Aleshinloye family. In 1980 the defendant went on part of plaintiff’s land and started building on it. This led to suit 1/334/83.

By his own amended statement of defence, the defendant claimed through S.B. Adewunmi. He admitted the suit between Aleshinloye family and S.B. Adewunmi that the land in dispute formed part of the land given to S.B Adewunmi by the Aleshinloye family as a result of the settlement. He counter-claimed for title, damages for trespass and injunction and in his statement of counter-claim, averred that he sold one of the two plots (Plot 16) he purchased from S.B. Adewunmi to one Afolabi.

At the conclusion of hearing, the learned trial Judge (Olowofoyeku, J.) on 4/7/86 found for the plaintiff and entered judgment in his favour. Whereupon the defendant appealed to the Court of Appeal.

The application for stay of execution was granted on the following terms inter alia:-

(a)
The Plaintiff by himself, his privies, agents, servants or any person claiming through or under him or howsoever was restrained from demolishing the buildings, both completed and uncompleted on the land

(b)
The rent payable by tenants in the building of Alhaji Aranse Afolabi (the Applicant in this case) be paid into the Court:

The Plaintiff’s solicitor after the stay of execution had been granted wrote to the Defendant demanding the damages and costs awarded against him and the letter was endorsed to the present applicant intimating him of the terms of the judgment affecting his building on the disputed land.

According to the Applicant, it was this letter which made him aware of the fact that there was a dispute involving his building. He thereupon brought an application as an interested party under section 222 of the Constitution of the Federal Republic of Nigeria 1979 and under Order 3 Rule 4 (1) of the Court of Appeal Rules 1981 praying the Court of the following orders:-

(1)
An order for leave to appeal against the judgment of the High Court Ibadan delivered on the 4th day of July 1986.

(2)
An order for enlargement of time within which to apply for leave to appeal against the said judgment delivered on 4/7/86

(3)
An Order that further steps in execution of the judgment appealed from be stayed pending the determination of the appeal.

(4)
In the alternative an order setting aside the orders of the High Court made on the 31st day of October 1986, and 10th day of November 1986.

The Application was supported with an affidavit deposing to the steps he took after becoming aware of the situation and how his interest was affected by the judgment. The Plaintiff/Respondent also filed a counter affidavit. At the hearing of the motion counsel for the Respondent opposed the application on the grounds that (a) the Applicant was a privy to the

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defendant and so could not come in to appeal as an interested person (b) that the Applicant could not claim ignorance of the suit in question and (c) that[1990] 1 .
Afolayan v. Ogunrinde
369

  CHIEF ADENIGBA AFOLAYAN



                              V.




  1.

OBA JOSHUA OGUNRINDE

  2.

CHIEF EMMANUEL AJIBOYE

  3.

CHIEF JOSHUA ABODUNRIN

  4.

CHIEF JAMES AREMU

SUPREME COURT OF NIGERIA

SC.83/1987

ANDREWS OTUTU OBASEKI, J.S.C. (Presided and Read the Lead Judgment) AUGUSTINE NNAMANI, J.S.C.

MUHAMMADU LAWAL UWAIS, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

ABDUL GANIYU OLATUNJI AGBAJE, J.S.C.

FRIDAY, 23RD FEBRUARY, 1990

ACTION – Cause of action – What it denotes and connotes.

ACTION – Constitution of an action in relation to cause of action – What court considers.

APPEAL – Findings of facts – Concurrent findings of facts – Attitude of the Supreme Court.

APPEAL – Findings of facts – Concurrent findings of fact – Onus on appellant.

APPEAL – Findings of facts by trial court – When an appellate court will interfere.

APPEAL – Findings of facts by trial court – When an appellate court will not interfere.

APPEAL – Issue in grounds of appeal – Duty of court to determine it.

COURT – Native Law and Custom – Section 34 of the High Court Law of Kwara State – Duty on court in respect thereof.

EVIDENCE- Proof – Onus – Mere name calling – Whether it discharges onus.

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JURISDICTION – Enforcement of legal right arising from native law and custom – Jurisdiction of High Court in respect of – S.236, 1979 Constitution.

JURISPRUDENCE – Right – How ascertained.

NATIVE LAW AND CUSTOM – Enforcement of legal right arising from native law and custom – Jurisdiction of High Court in respect thereof – S.236

1979 Constitution.

NATIVE LAW AND CUSTOM – Customary law – Modification of – Duty on party asserting modification.

PRACTICE AND PROCEDURE – Cause of action – Its ingredients in civil actions.

PRACTICE AND PROCEDURE – Issue raised in pleadings or in grounds of appeal – Duty on court to determine it.

PRACTICE AND PROCEDURE – Onus of proof – Name calling – Whether it discharges onus.

PRACTICE AND PROCEDURE – Parties – Cause of action – Whether cause of action determines who to join as party.

WORDS AND PHRASES – ‘Cause of action’ – Meaning of.

WORDS AND PHRASES – ‘Right’ – Meaning of.

Issues:

1.
Whether or not the plaintiffs had a cause of action.

2.
Whether or not an appellate court could reverse findings of facts of a trial court based entirely on demeanour.

3.
Whether or not Inishan is a ward in Oko Village.

4.
Whether or not it was in line with the custom of Inishan for the defendant’s family to wear a crown as suggested by the name of the defendant’s ancestor Tewogbade.

5.
Whether or not the action was properly constituted in view of the fact that Inishan Community was not a party at the High Court or alternatively whether or not the Inishan Community was bound by the decision that Inishan was a ward of Oko Village.

Facts:

The case arose from a Chieftaincy dispute. The 1st plaintiff is the head of all the Oko Community of Kwara State. The 2nd, 3rd and 4th plaintiffs are all subordinate chiefs of the Oko Community and they owe allegiance to the 1st plaintiff.

The plaintiffs sued the defendant who is a chief of Inishan Ward in Oko Community. The defendant is the tenth in the traditional hierarchy of the Oko Community. Contrary to the Native Law and Custom of the Oko Community,

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the defendant insisted on wearing a crown and when the defendant could not be persuaded otherwise, the plaintiffs took out a writ against him for

(a)
A Declaration that the defendant being a ward head of Inishan within Oko Village in Kwara State is not entitled to wear any crown without the consent and approval of the Oloko and his chiefs; and

(b)
An order of injunction against the defendant not to wear any crown without the consent and approval of Oloko of Oko and his chiefs.

The trial Judge granted the declaration and the injunction. The defendant appealed to the Court of Appeal where he argued, inter-alia, that the plaintiffs’ claim did not disclose a cause of action in that the plaintiffs did not indicate what they would lose materially in the defendant’s wearing a crown. The Court of Appeal dismissed the appeal. He (the defendant) further appealed to the Supreme Court and raised the five issues stated above.

Held (Unanimously dismissing the Appeal):

1.
On Meaning of cause of action –

A cause of action means

(a)
a cause of complaint;

(b)
a civil right or obligation fit for determination by a court of law;

(c)
a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine.

It is a factual situation which enables one person to obtain a remedy from another in court with respect to an injury. It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. [Adogan v. Aina (1964) 1 All NLR 127; Adimora v. Ajufo (1988) 3 N.W.L.R. (Pt.80) 1; Thomas v Olufosoye (1986) 1 N.W.L.R. (Pt.18) 669; Bello v Attorney-General, Oyo State (1986) 5 N.W.L.R. (Pt.45) 828 referred to.] (P.382, paras. F-H; p.392, para. A)

2.
On How a cause of action accrues –

When facts establishing a civil right or obligation and facts establishing infraction of or trespass on those rights and obligations exist side by side, a cause of action is said to have accrued. [Adimora v Ajufo (1988) 3 . (Pt.80) 1 referred to.] (Pp.382-383, paras. H-A)

3.
On How a cause of action accrues –

      Per OBASEKI, J.S.C. at page 384, paras. A-F:

“The facts pleaded clearly establish a cause of action. They establish the hierarchy of the Oba and the Chiefs in Oko land and the order of precedence. They establish the customary law regulating the same and the prohibition of the

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wearing of crown by the chiefs. They establish the attempt by the defendant in contravention of the tradition and in defiance of the Oloko to crown himself when he is a chief under the Oloko of Oko. In Bello v Attorney-General, Oyo State (1986) 5 N.W.L.R. (Pt.45) p.828 a “cause of action” was defined as ‘the factual situation’ which entitles one person to obtain a remedy from another person in Court. Dealing with the meaning of cause of action in his judgment in the above case, Karibi-Whyte, J.S.C., said at p.876:

“The proposition that a plaintiff has no cause of action merely because the defence has a valid defence is clearly not acceptable. I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed and enforced against the defendant, (a other words the factual situation relied upon must constitute the essential ingredients of an enforceable right of claim. See:

Trower & Sons Ltd. v. Ripstein (1944) A.C. 252 at p.263;

Read v. Brown 22 Q.B.D. 128;

Cooke v. Gill (1873) L.R. 8 C.P. 107;

Sugden v. Sugden (1957) All E.R. 300;

Jackson v. Spittal (1871) L.R. 5 C.P. 542;

Concisely stated, any act on the part of the defendant which gives the plaintiff his cause of complaint is a cause of action”.”

Per KARIBI-WHYTE, J.S.C. at pages 390-391, paras. H-B:

“The main thrust of this issue which is developed from ground I of the grounds of appeal is that since the claim to stop the appellant from wearing a crown is regarded as a Chieftaincy dispute, which was in Adanji v. Hunvoo (supra) held to be a mere dignity which conferred no proprietary right, respondents have no locus standi, since the right claimed did not give rise to a cause of action.

It is necessary to explain the misconception which has arisen from the old case of Adanji v Hunvoo. In Adanji v. Hunvoo (supra), the claim was for the title of the Fiyento of Badagry, which undoubtedly is a mere dignity. The accompanying privileges and rights were not in issue. In the instant case, respondents are claiming the exercise of a right consistent with the native law and custom of Oko to restrain the appellant from conducting himself in a particular manner namely to wear a crown, contrary to their law and custom.

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It seems to me that the gravamen of the issue lies in the nature of the claim of the respondents. The evidence before the Court, and consistent with the statement of claim and found by the trial Judge was that by the native law and custom of the Oko people no chief is entitled to wear a crown. The 1st respondent is the paramount Chief of the Oko people to which the appellant belongs. It is in the interest of the 1st respondent and all the respondents that the custom is preserved and protected.”

 Per AGBAJE, J.S.C. at pages 395-396, paras. F-A:

“The main contention of counsel for the appellant before us and in the lower court appears to be that the plaintiffs had no cause of action against the defendant in the present action instituted by them against him. Halsbury’s Laws of England Third Edition Volume 1 page 6 Article 9 tells us the meaning of the expression “Cause of Action”:-

“9. Popular and strict meanings. The popular meaning of the expression “cause of action” is that particular act on the part of the defendant which gives the plaintiff his cause of complaint (a). There may, however, be more than one good and effective cause of action arising out of the same transaction (b). Strictly speaking, “every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse” (c), forms an essential part of “the cause of action,” which “accrues” upon the happening of the latest of such facts (d) Consequently, in any particular case, “the cause of action,” strictly so called can only be said to arise within a certain local area, when all such material facts arise within that area, in which case (as it is often stated somewhat tautologically) the “whole” case of action so arises.” “

            Per AGBAJE, J.S.C. at page 396, paras. A-B:

“There can be no doubt in my view that on the facts pleaded and found proved by learned trial Judge the plaintiffs have established not only the particular act on the part of the defendant which gave them their cause of complaint against him, they have also established every fact which was material to be proved by them in order to succeed on their claims against the defendant. This being so, I am satisfied that the plaintiffs have a cause of action against the defendant.”

4.
On Cause of action and constitution of an action –

A person against whom a plaintiff has no cause of action need not be joined as a party and the action cannot be said to be improperly constituted because of the non-joinder. (P.394, paras. D-E)

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5.
On Need for judicial determination of issues raised –

Once an issue is raised, howsoever, either on the pleadings or in the grounds of appeal, and it is a proper one for determination, it is the legal duty of the trial Judge or appeal justices to determine it. (P.383, para. B)

6.
On Attitude of appellate court to findings of facts by trial court –

It is the law that appeal courts must not substitute their own views of the facts of a case for the views of the trial court which had the advantage of seeing and hearing the witnesses testify when the decision of the trial court is based on the credibility and demeanour of the witnesses. [Ebba v Ogodo [1984] 1 SCNLR 372; Okafor v Idigo [1984] 1 SCNLR 481 referred to and followed.] (P.385, paras. A-B; p.393, para. C)

7.
On When appellate court will interfere with findings of facts by trial court –

It is only where the question does not affect the issue of credibility of witnesses that an Appeal Court is in as good a position as the trial court to evaluate the evidence given and come to a proper decision which may or may not accord with that of the trial court. [Onowan v Iserhein (1976) 9-10 S.C. 95; Shell-BP v Cole (1978) 3 S.C. 183 applied.] (P.385, para. C; p.393, para. D)

8.
On The Attitude of the Supreme Court to concurrent findings of facts –

The Supreme Court will not interfere with or set aside and reverse concurrent judgments of facts by both the Court of Appeal and the High Court which findings have not been proved to be perverse or arrived at in violation of some principles of law or procedure. [Enang v Adu (1981) 11-12 S.C. 25; Okagbue v Romaine (1982) 5 S.C. 133 at 170 – 171; Lokoyi v Olojo (1983) 8 S.C. 61 at 68-73 (1983) 2 SCNLR 127; Ojomu v. Alao (1983) 3 SCNLR 156; Alade v Alemuloke (1988) 1 N.W.L.R. (Pt.69) 207 at 212 followed.] (P.385, paras. E-F; p.393, paras. F-G)

9.
On Onus on appellant wanting Supreme Court to overturn concurrent findings of facts –

The onus is on the appellant who invites the Supreme Court to interfere with or set aside and reverse concurrent findings of facts of the Court of Appeal and the High Court to prove that those findings of facts were perverse or arrived at in violation of some principles of law or procedure. (P.385, paras. E-F)

10.
On Name calling in the discharge of onus of proof –

Per OBASEKI, J.S.C. at page 385, paras. G-H:

“It is never the rule of law and practice in our courts that facts to be proved are proved by reference to the meaning attached by the party to his ancestors’ name or title. The submission

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that the meaning of “Tewogbade” the name of appellant’s ancestor establishes that the defendant was a descendant of Oduduwa and that he was entitled to wear a crown as claimed is totally without foundation and untenable and I hereby reject it and dismiss the ground as misconceived and frivolous”

11.
On What constitutes a right –

A right is an interest recognised and protected by the law. Every right involves a three-fold relation in which the owner of it stands, viz:-

(a)
It is a right against some person or persons;

(b)
It is a right to some act or omission of such person or persons;

(c)
It is a right over or to something to which the act or omission relates.

    (P.391, paras. E-E)

            Per KARIBI-WHYTE, J.S.C. at page 391, paras. F-H:

“Respondents are claiming the right to determine whether appellant or any other chief can wear a crown. This is a right in respect of the act over the right to wear a crown which appellant purports to claim. This interest of the respondents as I have already stated is recognised by native law and custom and protected by the Constitution. This is the characteristic mark. It is therefore a legal right accompanied by the power of enforceability by the instituting of legal proceedings.

The above analysis of the nature of the interests of the respondents in the claim of the appellant to wear a Crown, and of the recognition and protection of such interest by the law, the respondents have a legally enforceable interest which confers upon them the right to bring the action."

12.
On Enforcement of legal rights arising from Native Law and Custom

As enjoined by Section 34 of the High Court Law of Kwara State, the courts will enforce the observance of native laws and customs in so far as they have not been varied or suspended by law. Thus where the rights sought to be enforced arise from native law and custom, they come within the legal rights referred to in Section 236 of the Constitution of 1979 in respect of which the High Court has jurisdiction. (P.391, para. D)

13.
On Duty on party asserting modification of customary law –

Until any change occurs in the customary law of a community, it remains their law, and it is the duty of a party claiming that there is a change or modification of the customary law in his favour to satisfy the court to that effect. [Lewis v. Bankole (1908) 1 NLR 81; Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1931) A.C. 662 referred to.] (P.394, paras. B-D)

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Nigerian Cases Referred to in the Judgment:

Adanji v. Hunvoo 1 N.L.R. 74 at 78

Adimora v. Ajufo (1988) 3 N.W.L.R. (Pt.80) 1

Adogan v. Aina (1964) 1 All N.L.R. 127

Alade v. Alemuloke (1988) 1 N.W.L.R. (Pt.69) 207 at 212

Bello v. A.G. (Oyo State) (1986) 5 N.W.L.R. (Pt.45) 828

Ebba v. Ogodo (1984) 1 S.C.N.L.R. 372

Eleko v. Officer Administering the Government of Nigeria (1931) A.C. 662

Enang v. Adu (1981) 11-12 S.C. 25 at 42

Lewis v. Bankole (1908) 1 N.L.R. 81 at 100-101

Lokoyi v. Olojo (1983) 8 S.C. 61 at 68-73

Ojomu v. Alao (1983) 9 S.C. 22 at 53

Okafor v. Idigo (1984) 1 SCNLR 481

Okagbue v. Romaine (1982) 5 S.C. 133 at 170-171

Olawoyin v. A.G. (Northern Nigeria) (1961) NRNLR 84; (1961) 2 SCNLR 5

Oloriode v. Oyebi (1984) 5 S.C. 1; (1984) 1 SCNLR 390

Onowan v. Iserhein (1976) 9-10 S.C. 95

Shell-BP v. Cole (1978) 3 S.C. 183

Thomas v. Olufosoye (1986) 1 N.W.L.R. (Pt.181 669

Foreign Cases Referred to in the Judgment:

Cooke v. Gill (1873) L.R. 8 C.P. 107

Jackson v. Spittal (1871) L.R. 5 C.P. 542

Max v. Austin Motors Co. Ltd.(1955) A.C. 370

Read v. Brown (1888) 22 Q.B.D. 128

Sugden v. Sugden (1957) All E.R. 300

Trower & Sons Ltd. v. Ripstein (1944) A.C. 252 at 263

Watt or Thomas v. Thomas (1947) A.C. 489

Nigerian Statutes Referred to in the Judgment:

Constitution of Federal Republic of Nigeria, 1979, S.236

High Court Law of Kwara State, Ss. 34 & 35

Foreign Rule of Court Referred to in the Judgment:

Rules of Supreme Court of England, Order 15 rule 16

Books Referred to in the Judgment:

Halsbury’s Laws of England, 3rd Ed., Vol.l, p.6. Article 9

Paton on Jurisprudence, 3rd Ed., p.250

Salmond on Jurisprudence, 10th Ed., p.234

Appeal:

This was an appeal against the judgment of the Court of Appeal which affirmed the judgment of the trial High Court. The Supreme Court also unanimously dismissed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the Appeal: Andrews Otutu Obaseki, J.S.C. (Presided and Read the Lead Judgment), Augustine Nnamani, J.S.C., Muhammadu Lawal Uwais, J.S.C., Adolphus

[1990] 1 .
Afolayan v. Ogunrinde
(Obaseki, J.S.C. )
377

A

B

C

D

E

F

G

H

Godwin Karibi-Whyte, J.S.C., Abdul Ganiyi Olatunji Agbaje, J.S.C.

Appeal No.: SC.83/1987

Date of Judgment: Friday, 23rd February, 1990.

Names of Counsel: J.O. Ijaodola (with him, Chief S.F. Odeyemi) – for the Appellant.

Chief P.A.O. Olorunnisola – for the Respondents.

Court of Appeal:

Division of the Court of Appeal from which the Appeal was brought:Court of Appeal, Kaduna.

Names of Justices that sat on the Appeal:Abubakar Bashir Wali, J.C.A. (as he then was) (Presided), Ephraim Omorose Ibukun Akpata, J.C.A. (Read the Lead Judgment), Joseph Diekola Ogundare, J.C.A.

Appeal No.: CA/K/83/85

Date of Judgment: Thursday, 10th April, 1986.

Names of Counsel: J.O. Ijaodola – for the Appellant.

P.A.O. Olorunnisola – for the Respondents.

High Court:

Name of the High Court: High Court, Ilorin.

Name of the Judge: T. A. Oyeyipo, J. (as he then was)

Suit No.:KWS/34/1980

Date of Judgment: Tuesday, 31st March, 1981.

Names of Counsel: P.A.O. Olorunnisola – for the Plaintiffs.

J.O. Ijaodola, Esq. – for the Defendant.

Counsel:

J.O. Ijaodola (with him, Chief S.F. Odeyemi) – for the Appellant.

Chief P.A.O. Olorunnisola – for the Respondents.

OBASEKI, J.S.C. (Delivering the Lead Judgment): On the 27th day of November, 1989, after considering the submissions of counsel for the appellant and respondents made to the Court in their briefs in writing and orally before us in this court, I dismissed the appeal with N500.00 costs to the respondents and reserved my Reasons for the judgment till today. I now give them.

Proceedings in this matter were commenced in the Ilorin Judicial Division of Kwara State High Court by a Writ of Summons filed by the plaintiffs/respondents as plaintiffs against the defendant/appellant as defendant claiming therein

“1.
a declaration that the defendant being a ward head of Inishan within Oko Village in Kwara State is not entitled under Oko Native law and custom to wear any crown without the consent and approval of the Oloko of Oko and his chiefs;

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(Obaseki, J.S.C. )

A

B

C

D

E

F

G

H

2.
an order of injunction on the defendant not to wear any crown without the consent and approval of Oloko of Oko and his chiefs. Pleadings were filed and served and at the close of pleadings, the issues joined came up for hearing and determination before Oyeyipo, J. (as he was then).

At the conclusion of the hearing of the evidence of witnesses and addresses of counsel, the learned trial Judge gave a well considered judgment in favour of the plaintiffs/respondents granting the declaration sought. In his concluding paragraph, the learned trial Judge said:

“From the plethora of evidence adduced by the plaintiffs in this case and which evidence I accept, 1 am satisfied that the plaintiffs herein have amply proved their case against the defendants. It is trite law that before granting a declaration, a court must be satisfied that it will serve a useful purpose (Attorney-General v. Colchester Corporation (1955) 2 Q.B. 207) and that it will terminate the controversy which gave rise to the proceedings. (A.G. v. Dean and Chapter of Ripon Cathedral (1945) Ch. 239). I am satisfied that the granting of the declaration hereby sought by the plaintiffs will settle the issues in controversy among the parties herein as it will restore the status quo which in the light of the evidence I have accepted in this case has always existed between an Oloko of Oko and an Enishan of Inishan Ward in Inishan Oko. It is this status quo which the defendant has sought to destroy in his defiance of the hallowed native law and custom of Oko as regards the issue of wearing a crown.In short, the plaintiffs have amply proved their case on the preponderance of evidence against the defendant and accordingly, I hereby grant the plaintiffs the declaration sought by them as per their Writ of Summons.”

The defendant was dissatisfied with the decision and by notice of appeal dated 1st day of April, 1981 appealed to the Court of Appeal on 8 grounds. Briefs of arguments were filed in the Court of Appeal and when the appeal came up for hearing, counsel adopted the submissions in their briefs expatiating on only a few issues. Mr. Ijaodola expatiating on the question of sustainable cause of action submitted that since the plaintiff failed to claim that they would lose anything materially, there was no sufficient cause of action.

Replying Olorunnisola for the respondents, submitted that as the action was for a declaratory judgment, a cause of action need not be shown or disclosed beyond the claim. After the hearing the Court of Appeal (coram Wali, Akpata and Ogundere, JJ.C. A.) gave a considered judgment dismissing the appeal unanimously. Akpata, J.C.A., in his lead judgment with which the other learned Justices agreed, said he found no merit in all the grounds of appeal filed and argued (i.e. grounds 1, 2, 3, 4, 5, 6, 7 and 8) and dismissed the appeal.

Still dissatisfied, the defendant has appealed against the decision of the Court of Appeal to this court on 4 original grounds of appeal and two additional grounds. The grounds of appeal without their particulars are as follows:

[1990] 1 .
Afolayan v. Ogunrinde
(Obaseki, J.S.C. )
379

A

B

C

D

E

F

G

H

1.
The learned Justices of the Court of Appeal erred and/or misdirected themselves in law and in fact in dismissing the appellants’ appeal when the respondents herein who were the plaintiffs at the Ilorin High Court did not plead, let alone establish that they would lose anything if the appellant herein who was the defendant at the trial Ilorin High Court should wear a crown.

                 Particulars

i.
……………………………………………………………………………

ii

……………………………………………………………………………

iii

……………………………………………………………………………

iv

……………………………………………………………………………

2.
The learned Justices of the Court of Appeal erred in law in holding that they could not reverse the decision of the Ilorin High Court which was based on the demeanour of witnesses

                   Particulars

i.

……………………………………………………………………………

ii.

……………………………………………………………………………

3.
The learned Justices of the Court of Appeal erred and misdirected themselves in law and in fact in confirming that the appellant’s village was a ward in Oko Village when a respondent’s witness agreed that Inishan-Oko was at least one mile away from Oko village and there were other factors to the contrary.

                    Particulars of Error and Misdirection

      in Law and in Fact

                    i            

……………………………………………………………………………

ii.

……………………………………………………………………………

iii.

……………………………………………………………………………

4.
The learned Justices of the Court of Appeal erred on the facts by not setting aside the trial court’s decision that the Enishan should not wear a crown despite the fact that the name of the ancestor of the defendant (appellant herein) was Tewogbade which literally means “Accept the Crown with your palm”

Particulars of Errors on the Fact

That name (Tewogbade) suggests that the defendant was a descendant of Oduduwa and that he was entitled to wear a crown as claimed by him.

The additional grounds of appeal are:

1.
The learned Justices of the Court of Appeal erred in law in not setting aside the decision of the High Court to the effect that Inishan was part of Oko Village when Inishan was not a party to the proceedings at the High Court.

                    Particulars of Errors of Misdirection in law

i.

……………………………………………………………………………

ii.

……………………………………………………………………………

iii.

……………………………………………………………………………

iv.

……………………………………………………………………………

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2.
The learned Justices of the Court of Appeal erred and misdirected themselves in law in not making it clear in their judgment that Inishan community was not bound by the High Court decision since Inishan Community was neither a party nor a privy to the High Court’s decision and it cannot be said that the Inishan community was guilty of the doctrine of “standing by”.

         Particulars of Error and

         Misdirection in Law

i.

Only parties and their privies are bound by a court’s decision

ii.
The Inishan community was not guilty of “standing-by” and was not bound by the High Court’s decision that Inishan is part of Oko village.

The above grounds of appeal are essentially a repeat of the grounds of appeal filed and argued before the Court of Appeal. Leave to file the grounds raising issues of mixed law and fact and of facts was sought and obtained.

Parties filed their briefs and set out the issues for determination in this appeal. The issues formulated by the appellant in his brief are fivefold and read as follows:

“1. Whether or not the plaintiffs had a cause of action:

2.
Whether or not an appellate court could reverse findings of fact of a trial court based entirely on demeanour;

3.
Whether or not Inishan is a ward in Oko Village and

4.
Whether or not it was in line with the custom of Inishan for the defendant’s family to wear a crown as suggested by the name of the defendant’s ancestor Tewogbade.

5.
Whether or not the action was properly consitituted in view of the fact that Inishan Community was not a party at the Ilorin High Court or alternatively whether or not the Inishan Community was bound by the decision that Inishan was a ward of Oko Village.

Mr. J.O. Ijaodola appeared as counsel for the appellant and Chief P.A.O. Olorunnisola appeared for the respondents. Learned counsel for the appellant dealt with all the issues formulated in his brief and at the oral hearing he amplified some aspects of his submissions.

On issue No. 1 above, he submitted that “there must be a loss or gain before a person can have a valid cause of action”. He cited in support the case of Adanji v. Hunvoo 1 N.L.R. 74 at 78. He referred to the dictum of Speed, Ag. C.J., that a chieftaincy is a mere dignity that the court had no jurisdiction to decide upon it. He submitted that section 236 of the Constitution of the Federal Republic of Nigeria, 1979 does not alter the position that a plaintiff must derive som^ benefit from the action before a cause of action can be said to arise. He then submitted that the plaintiffs have disclosed no cause of action against the defendant. He also referred to the case of Olawoyin v. Attorney-General of Northern Nigeria (1961) NRNLR 84; (1961) 2 SCNLR 5. He submitted that the facts pleaded in paragraph 13 of the statement of claim to wit:

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        "All the Chiefs, senior to the defendant and those junior to him are against the defendant crowning himself because it is untraditional and it has no customary law or practice to support it."

On issue No. 2, learned counsel for the appellant submitted that although there had been concurrent findings by the two courts below that the Inishan is part of Oko Village, the decision is perverse there being evidence that

(1) there are 3 wards in Inishan

(2)
Inishan is about one mile between Inishan and Oko and

(3)
Inishan village community has its own sub-chiefs.

He then submitted that the findings of fact by the High Court being perverse the Court of Appeal erred in not setting the decision of the High Court aside. He submitted further that there is evidence to support a finding that the two villages Inishan and Oko are separate and distinct villages.

On issue No.3, learned counsel for the appellant submitted that the issue of Inishan being called Inishan-Oko was not raised in the pleadings and ought not to have been relied upon by the 2 courts below. He conceded that the defcndant/appellant “had a lot of contact with the government in his capacity as the agent for collection of taxes”.

On issue No. 4, learned counsel for the appellant submitted that the ancestor of the appellant was called Tewogbade and that the significance of the name lies in its meaning which is “open your palm to obtain a crown”. He then contended that the name presupposes that the defedndant’s ancestor was a crown wearer. He debunked the argument that the Enishan was not entitled to wear a crown because Oloko and other Oko Chiefs do not wear a crown. He submitted that there is no statutory or customary law prohibiting the appellant from wearing a crown. He then relied on the dictum of Osborne, C.J., in the case of Lewis v. Bankole (1908) 1 N.L.R. 81 at 100-101 on adaptability of West African native custom to altered circumstances.

On issue No.5, learned counsel submitted that the action filed at the High Court was not properly constituted as all necessary parties were not brought before the court. He contended that Inishan community was a necessary party which should have been joined, and cited the case of B. Oloriode & Ors. v. S. Oyebi & Ors. (1984) 5 S.C. 1; [1984] 1 SCNLR 390 in support. He contended that not being a party the Inishan community is not bound by the decision of the Court of Appeal.

Learned counsel for the respondents formulated two issues for determination in this appeal. The first issue reads:

              "Whether a declaratory order can be made without a cause of action"

This issue is identical in substance with issue No. 1 formulated by the appellant. The second issue reads:

“Whether or not the plaintiffs proved their native law and custom with respect to the wearing of crown by the chiefs in Oko wards and in accordance with their claim on issues which were joined.”

This issue though cast in different terms is essentially the same as issue No. 4 of the issues formulated by the appellant. This issue formulated in the respondents’ brief brings out forcibly the real issue for determination in this appeal. Its determination will form the cornerstone of the success or failure

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of this appeal by the appellant.

Replying to the submissions of counsel. learned counsel for the respondents submitted that there is a cause of action disclosed in the claim filed. He pointed out that the statement of claim sufficiently pleaded the interest of the respondent, the customary law regulating the wearing of crown in Oko village and the violation and threat of continued violation of the custom of the Oko community in regard to the wearing of crowns.

Learned counsel for the respondents further contended that the respondents have a right and duty to protect and preserve the custom inviolate and maintain the relative position, status and hierarchy of chiefs in Oko land.

Turning to the provision of section 236 of the Constitution of the Federal Republic of Nigeria, 1979, learned counsel submitted that the provision of the section gives right of action to every person who claims or contends that the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue. He contended that the existence of legal right, right of the appellant to wear a crown is in issue. Also in issue is the duty of the respondents to protect and preserve their custom which prevents the appellant from wearing a crown. He then submitted that a declaratory action need not disclose tiny cause of action if consequential reliefs are not claimed.

Turning to the issue whether it was proved that Inishan is part of Oko, learned counsel for the respondents submitted that the fact that Inishan is a part of Oko was pleaded and that it was proved by abundant evidence adduced by witnesses called by the plaintiffs/respondents.

The issues raised on the pleadings tire all issues arising from a chieftaincy matter. When then the appellant submitted that the claim and pleadings filed disclose no cause of action, he must be questioning not only the absence of facts constituting the elements of chieftaincy but also the competence of the High Court to hear and determine the matter.

Cause of action has been defined by this court in many decisions of this court. See:

Adogan & Anor.v. Aina (1964) NSCC (Vol. 3) 87

Adimora V. Ajufa (1988) NSCC (Vol. 19 (Pt.1) 1003, 1005; (1988) 6 S.C.; (1988) 3 N.W.L.R. (Pt.80) 1

Thomas v. Olufosoye (1986) 1 N.W.L.R. (Pt. 18) p.669

Bello v. Attorney-General, Oyo State (1986) 5 N.W.L.R. (Pt.45) 825

In its simplest terms, I would say that a cause of action means –

(1)
a cause of complaint;

(2)
a civil right or obligation fit for determination by a court of law;

(3)
a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine.

It consists of every fact which it would be necessary tor the plaintiff to prove, if traversed, in order to support his right to judgment: Cook v. Gill (1873) L.R. 8 C.P. 107; Read v. Brown (1889) 22 Q.B.D. 128. When facts establishing a civil right or obligation and facts establishing infraction of or trespass

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on those rights and obligations exist side by side, a cause of action is said to have accrued. See:

              Adimora v. Ajufo (1988) 1 NSCC 1005, 1008; (1988) 3 N. W.L.R. (Pt.80) 1.

It appears that this issue was raised in the Court of Appeal and the High Court without its being expressly determined, dealt with or answered. It is necessary to emphasise that once an issue is raised howsoever either on the pleadings or in the grounds of appeal and it is a proper one for determination, it is the legal duty of the learned trial Judge or appeal Justices to determine it. The contention of the learned trial Judge and the Justices of the Court of Appeal that a claim for a declaratory judgment need not disclose a cause of action where no ancillary relief is claimed, is no answer. This failure to answer the question gives the impression that the pleadings particularly the statement of claim filed by the plaintiffs/respondents were not examined. This statement of claim discloses that the facts pleaded in paragraphs 1, 2, 3, 4, 7, 8 and 11 are tacts which disclose a cause of action. These paragraphs read:

“1.
The 1st plaintiff is the Oba Oko, the Oloko of Oko in Irepodun Local Government of Kwara State.

2.
The Oloko of Oko is the only Oba in Oko land and under the Oloko are the following chiefs in order of seniority

(a)
The Esa of Odo Oko ward who is the second plaintiff;

(b)
Aro of Irapa ward who is the third plaintiff

(c)
Odofin of Inishan ward

(d)
Asanlu of Owaro ward

(e)
Ipetu of Irapa ward

(f)
Oye of Iwoye ward

(g)
Oye of Odo Oko ward

(h)
Edemorun of Idomorun ward – the fourth plaintiff

(i)
Enishan of Inishan ward – the defendant

(j)
Olowa of Owaro ward

(k)
Onigbin of Odo Aba ward

3.
The Enishan of Inishan ward is the tenth in order (sic) to seniority of the Oba and Chiefs in Oko

4.
There are seven wards in Oko made up as follows

(a)
Oko Isale or Okerigbo consisting of Irapa, Inishan and Iwoye

(b)
Four other wards at Oke-Oko

7.
By the tradition and custom of Oko people of which Inishan is part, no chief ever wears a crown

8.
In contravention of age long tradition of Oko people and in defiance of the Oloko, the defendant has made several attempts to crown himself

9.
In September, 1978 the defendant made an attempt to crown himself and he was reported to the Irepodun Local Government and the Omu-Aran police command.

11.
The 1st plaintiff has suzerainty over all the wards comprising Oko.

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13.
All other chiefs senior to the defendant and those junior to him are against the defendant crowning himself because it is untraditional and it has no customary law to support it.”

The facts pleaded above clearly establish a cause of action. They establish the hierarchy of the Oba and the Chiefs in Oko land and the order of precedence. They establish the customary law regulating the same and the prohibition of the wearing of crown by the chiefs. They establish the attempt by the defendant in contravention of the tradition and in defiance of the Oloko to crown himself when he is a chief under the Oloko of Oko. In Bello v. Attorney-General, Oyo State (1986) 5 N.W.L.R. (Part 45) p.828 a “cause of action” was defined as ‘the factual situation’ which entitles one person to obtain a remedy from another person in court. Dealing with the meaning of cause of action in his judgment in the above case, Karibi-Whyte, J.S.C., said at p.876:

“The proposition that a plaintiff has no cause of action merely because the defence has a valid defence is clearly not acceptable. I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought.

Thus, the factual situation which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed and enforced against the defendant. In other words the factual situation relied upon must constitute the essential ingredients of an enforceable right of claim. See:

    Trower & Sons Ltd. v. Ripstein (1944) A.C. 252 at p.263;

Read v. Brown (1889) 22 Q.B.D. 128;

Cooke v. Gill (1873) L.R. 8 C.P. 107;

Sugden v. Sugden (1957) All E.R. 300;

Jackson v. Spinal (1871) L.R. 5 C.P. 542;

Concisely stated, any act on the part of the defendant which gives the plaintiff his cause of complaint is a cause of action.”

It is clear from what I have said above that the defendant has given the plaintiffs their cause of complaint to the court. The contention of the appellant that the respondent did not plead or prove that they would lose anything is incorrect. The transgression of the native law and custom by the defendant and his defiance of the authority of the 1st plaintiff, Oloko of Oko, by crowning himself and wearing a crown amount to a wrong against the plaintiffs which could if not remedied, cause the village loss of stability, peace and harmony.

The case put forward by the appellant that Inishan is distinct and separate from Oko and that he is not under the Oloko of Oko and entitled to wear a crown is evidence of what the plaintiffs would lose by the defendant wearing a crown. There is therefore no substance in ground 1 and the issue whether the claim disclosed a cause of action must be answered in the affirmative.

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    Turning to issues Nos. 2, 3 and 4 raised in grounds 2, 3 and 4, I find that the questions raised in these grounds are questions of mixed law and fact. It is the law that appeal courts must not substitute their own views of the facts of a case for the views of the trial court which had the advantage of seeing and hearing the witnesses testify when the decision of the trial court is based on the credibility and demeanour of the witnesses. See:

                   Chief Frank Ebba v. Chief Ogodo [1984] 1 SCNLR 372

Okafor v. Idigo [1984] 1 SCNLR 481

Watt or Thomas v. Thomas (1947) A.C. 484

Ben Max v. Austin Motors Co. Ltd. (1955) A.C. 370

It is only where the question does not affect the issue of credibility of witnesses that an appeal court is in as good a position as the trial court to evaluate the evidence given and come to a proper decision which may or may not accord with that of the trial court.

The Court of Appeal has therefore in the instant case, correctly restated the law and adopted the correct attitude by refraining from interfering with the findings made by the High Court. The court’s disinclination to reverse the findings of fact made by the trial court is dictated by law and the overly whelming evidence on record in support of those findings.

There is overwhelming evidence which established that Inishan is a ward in Oko village and that Inishan community is a constituent part of Oko community. The evidence of 2nd plaintiff, 3rd plaintiff, 4th plaintiff and plaintiffs’ 1st witness accepted by the learned trial Judge established these facts. There is therefore no substance in grounds 2 and 3.

The facts sought to be reversed by this court are concurrent findings made by the High Court and the Court of Appeal. This court has said repeatedly that it will not interfere with or set aside and reverse concurrent findings of facts which have not been proved to be perverse or arrived at in violation of some principles of law or procedure. The appellant has, in my view, failed woefully to discharge the burden of proving that those findings were perverse or arrived at in violation of some principles of law or procedure as required by law so as to persuade this court to interfere with those concurrent findings. See

Enang v. Adi (1981) 11-12 S.C. 25 at 42

Okagbue v. Romaine (1982) 5 S.C. 133 at 170-171

Lokoyi v. Olojo (1983) 8 S.C. 861 at 68-73; [1983] 2 SCNLR 127

Ojomu v. Alao (1983) 9 S.C. 22 at 53; [1983] 2 SCNLR 156

                 Alade v. Alemuloke(1988) 1 N.W.L.R. (Pt.69) 207 at 212

I therefore hereby affirm the findings for the third time.

Grounds 2 and 3 fail and are dismissed. Ground 4 appears to be a huge joke. It is never the rule of law and practice in our courts that facts to be proved are proved by reference to the meaning attached by the party to his ancestors name or title. The submission that the meaning of “Tewogbade” the name of appellant’s ancestor establishes that the defendant was a descendant of Oduduwa and that he was entitled to wear a crown as claimed is totally without foundation and untenable and I hereby reject it and dismiss the ground as misconceived and frivolous.

Turning to the issue raised in the additional ground 1, i.e., whether the

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action is properly constituted having regard to the fact that Inishan Community was not made a party, I can find nothing either in the pleadings or evidence on record to suggest that members of the community have breached the native law and custom of Oko village. The appellant’s defence that he inherited the crown and was entitled to wear it as his fathers before him cannot found a cause against Inishan Community. There being no cause of action against the Inishan Community the action is properly constituted and additional ground 1 fails.

Additional ground 2 is, in the light of the above, misconceived and frivolous. Apart from the appellant, no member of the community has claimed to be entitled to wear a crown.

It was for the above reasons that I dismissed the appeal on the 27th day of November, 1989.

NNAMANI, J.S.C.: This appeal came before this court on 27th November, 1989. Having read the record of proceedings, and after hearing learned counsel to the appellants learned counsel to the respondents having not been called, I was satisfied that the appeal was devoid of merit and I dismissed it. I indicated that I would give my reasons for that judgment today.

I now give the reasons.

I have before now had advantage of reading the reaons for judgment just delivered by my learned brother, OBASEKI, J.S.C. I agree with these reasons and adopt them as my own.

The main bone of contention was the attempt to wear a crown. The respondents had sued for a declaration that:

“1.
The defendant being a ward head of INISHAN within Oko Village in Kwara State is not entitled under Oko Native law and custom to wear a crown without the consent and approval of the Oloko of Oko and his Chiefs.

2.
The defendant should not wear any crown without the consent and approval of the Oloko of Oko and his Chiefs”

Both in their pleadings and evidence, the respondents established that INISHAN was a ward within Oko and that the appellant was 10th in order of seniority of the Oba and Chiefs in Oko. This was as against the pleading and evidence of the appellant that INISHAN was a separate community from Oko founded by a prince from Ishan-Ekiti and that the Enitshan of INISHAN had always worn a crown during festivals. Oyeyipo, C.J., who heard the case found as follows:-

“Having carefully reviewed and reflected on the evidence in this case, I am satisfied that the preponderance of probability is definitely in favour of the plaintiffs contention that Inishan is a ward in Oko and that the defendant is a sub-chief under the Oloko and probability is always a safeguide to sacred sanctuary of belief .

………………………………………………………………………………………….

I accept their testimony that under Oko native law and custom no Oloko ever wears a crown and a fortiori no sub-chief who is subordinate to Oloko can ever wear a crown under that custom. I

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        also find as a fact from the evidence of the plaintiffs and only witness and which evidence I accept in entirety that Inishan is a ward in Oko hence it is called Inishan-Oko. I also find as a fact that the defendant is a ward head in Oko."

These findings were confirmed by the Court of Appeal. The appellant has shown no special circumstances that would justify disturbing them. It was for this reason, and the more detailed reasons in the lead judgment that I dismissed the appeal.

UWAIS, J.S.C.: I have had the privilege of reading in draft, the judgment read by my learned brother, Obaseki, J.S.C. As it was for the same reasons that I agreed, on the 27th day of November, 1989, that the appeal should be dismissed with N500.00 costs to the respondents. I adopt the reasons as mine and do not wish to add anything more.

KARIBI-WHYTE, J.S.C.: On 27/11/89, after oral argument of counsel in this appeal, based on the briefs filed, and after considering the arguments and the record of appeal, I summarily dismissed the appeal of the appellants with N500 as costs to respondent and indicated that I will give the reasons for so doing today. This I proceed to do hereunder.

I have read the reasons for judgment of my learned brother Obaseki, J.S.C., in this appeal, with which I agree entirely. I only wish to state my own reasons which in certain respects are approached from a slightly different angle.

Respondents to this appeal, who are the plaintiffs in the action in the High Court, are all members of the Oko Community. They claim, and this was the finding of the trial Judge, affirmed by the Court of Appeal, that appellant, who is the head of the Inishan Community, is a member of the Oko Community. Appellant has denied this claim arguing that his village Inishan is different, and that they are autonomous and owe no allegiance to Oko.

Oba Joshua Ogunrinde, the 1st plaintiff is the Head of all the Oko Community. The 2nd, 3rd and 4th plaintiffs are all subordinate Chiefs of the Oko Community, and owe allegiance to the 1st plaintiff. They all claim that the defendant is one of them being only the tenth in the hierarchy. The disagreement between the plaintiffs/respondents and the defendant/appellant, stems from the insistence of the appellant, regarded by the respondents as one of them and the tenth in the hierarchy, contrary to their custom to wear a crown. This is a privilege conceded to none of them, including the 1st plaintiff/respondent, the overall superior of all Oko Chiefs. When appellant could not be persuaded by his compeers to abide by the accepted native law and custom not to wear a crown, the plaintiffs resorted to this expedient. They brought this action.

Plaintiffs/respondents commenced an action by writ of summons in the Ilorin High Court against the defendant, for

“1. a declaration that the defendant being a ward head of Inishan within Oko Village in Kwara State is not entitled under Oko Native

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law and custom to wear any crown without the consent and,approval of the Oloko and his Chiefs;

2.
an order of injunction on the defendant not to wear any crown without the consent and approval of Oloko of Oko and his Chiefs.”

The issue was determined by the trial Judge, Oyeyipo, J., after hearing, on the issue joined on pleadings. The trial Judge, in a well considered judgment granted both the declaration and the injunction asked for. In his judgment the learned trial Judge made the following findings of fact.

1.
That Inishan is a Ward in Oko hence it is called Inishan-Oko and that the defendant is a sub-chief under the Oloko.

2.
Under Oko Native law and custom no Oloko ever wears a crown and a fortiori no sub-chief who is subordinate to the Oloko can ever wear a crown under that custom.

3.
That the defendant is a Ward Head in Oko.

4.
That the Oko Community accepts the hegemony of the Oloko.

In granting the claims, the learned Judge observed.

“I am satisfied that the granting of the declaration hereby sought by the plaintiffs will settle the issues in controversy among the parties herein as it will restore the status quo which in the light of the evidence I have accepted in this case has always existed between an Oloko of Oko and an Knitshan of Inishan Ward in Inishan-Oko.”

It is this status quo which the defendant has sought to destroy in his defiance of the hallowed native law and custom of Oko as regards the issue of wearing a crown.”

The defendant dissatisfied with this judgment appealed against it to the Court of Appeal. He filed eight grounds of appeal ranging from an attack on the findings of fact by the learned Judge, the issue of the parties being bound by their pleadings, and refusal to visit Inishan and Oko, and the grounds of law relating to the establishment of a cause of action.

Both Mr. Ijaodola for the appellant and Chief Olorunnisola for the respondent at the Court of Appeal filed briefs of argument which they relied upon in their oral argument before the court.

In his oral argument, relying on section 236 of the Constitution 1979, Mr. Ijaodola submitted that plaintiff’s claim did not disclose any cause of action; having not indicated what plaintiffs would lose materially in the defendant wearing a crown. Mr. Olorunishola’s reply was that a claim for a declaration need not show that plaintiff has a cause of action beyond the claim. He pointed out in answer that by wearing a crown defendant would be eroding the authority of the Oloko and thus “threatening the composite existence of the Unit”. The appellant would be claiming a status higher than that of the Oloko in the hierarchy of traditional status in Oko village.

The Court of Appeal considered the findings of fact of the trial Judge and came to the conclusion that they were based on the observation of the witnesses and their demeanour, the appraisal of which is within the peculiar province of the Judge of the Court of trial who saw and heard them. The Court of Appeal was therefore in this case not in any position to interfere

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with the findings, since the conclusions and inference drawn by the trial Judge flow naturally from the evidence before him. The Court of appeal pointed out that it will not disturb a finding of fact unless it was satisfied that such a finding is unsound. And in this case Akpata, J.C.A., said:

“…….I do not see how the trial Judge can be faulted. It is clear from the printed records that the learned trial Judge could not have come to a different conclusion. His decision was based to a large extent on the demeanour of witnesses and, in a small degree, on factors from which inference could be drawn. For instance, whether or not Inishan is a part of Oko because it is called Inishan-Oko was not, standing on its own, an issue that could be resolved on the demeanour of witnesses. I hold the view that the learned trial Judge drew the right inference in the circumstance of the case.”

On the issue whether the plaintiffs had a cause of action, the Court of Appeal held that the question whether the appellant was entitled under native law and custom of the Oko people to wear a crown was not hypothetical, and it is not a matter in which the respondents have no vested interest. The trial Judge rightly exercised his discretion to grant the claim before him.

On the issue whether the trial Judge was in error in not going to visit both Oko and Inishan, the Court of Appeal argued that it was not a matter raised on the pleadings. It was also not a matter canvassed in evidence in court and was not an issue in the case. The trial Judge was therefore right not to have embarked on the exercise. As the grounds of appeal having failed, the appeal was accordingly dismissed.

Appellant still dissatisfied has now appealed to this court. There are six grounds of appeal. Four of the grounds of appeal, namely 2, 3 and 4 challenged the findings of facts of the two courts below. The only ground of law is ground 1 which relates to the existence vel non of cause of action in the plaintiffs. They are in reality a repetition of the grounds of appeal in the p court below.

I do not consider it necessary to reproduce the grounds of appeal which have been adequately set out in the judgment of my learned brother, Obaseki, J.S.C. I shall only summarise them for the purposes of the opinions I shall express in this judgment.

Counsel filed their briefs of argument on which they relied in their oral argument before us. Mr. Ijaodola, counsel to the appellants formulated five issues as arising from the grounds of appeal filed. Chief Olorunnisola formulated only two issues which could conveniently fall within the first and fourth issues formulated by learned counsel to the appellant.

The issues formulated are as follows –

” 1.
Whether or not the plaintiffs had a cause of action;

          2.         Whether or not an appellate court could reverse findings of fact of a trial   court based entirely on demeanour;

3.
Whether or not Inishan is a ward in Oko Village; and

4.
Whether or not it was in line with the custom of Inishan for the defendant’s family to wear a crown as suggested by the name of

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5.
Whether or not the action was properly constituted in view of the fact that Inishan Community was not a party at the Ilorin High Court or alternatively whether or not the Inishan Community was bound by the decision that Inishan was a ward of Oko Village.

I shall now consider the arguments addressed to us on each of the above issues.

On issue No. 1, Mr. Ijaodola learned counsel to the appellants relying on the old case of Adanjiv. Hunvoo 1 N.L.R. 74 at p.78 submitted that since plaintiffs had not given evidence of any loss or gain or benefit to them by virtue of the action of the defendant complained, they have no cause of action.

He likened this claim to that in Adanji v. Hunvoo (supra) where chieftaincy was defined as a mere dignity, a position of honour, of primary among a particular section of the native community, and therefore does not give rise to a cause of action. Learned counsel submitted that section 236 of the Constitution 1979 has not altered the legal position. He submitted further that the view by the Court of Appeal that the defendant wearing a crown without the authorisation of the 1st plaintiff was against the native law and custom of Oko; would erode the authority of the 1st plaintiff and “threaten the composite existence of the unit” was erroneous. Learned counsel then pointed out from paragraph 13 of the statement of claim why plaintiffs took the action. That is that all the other chiefs were opposed to the defendant wearing a crown because it is against their native law and custom.

Chief Olorunnisola learned counsel to the respondents submitted that respondents relied on their pleadings that the appellant was in violation of their tradition, and that such violation would adversely affect law and order of the Oko community and the hierarchy of the plaintiffs/respondents. Learned counsel submitted the plaintiffs/respondents have an interest to protect the hierarchy of authority in their community and the composite existence of the Oko community. It was also submitted the threat to or interference with this hierarchy of authority gave rise to the cause of action. Learned counsel submitted that this interest is protected under section 236 of the Constitution 1979. Accordingly the plaintiffs are not mere busy bodies who have no right of action. They have a locus standi.

Citing section 35 of the High Court Law of Kwara State and Order 15 Rule 16 RSC of England, it was submitted that the court can make a declaratory order even whether or not there is a cause of action. Several decided cases were cited in support of this proposition.

I think it is convenient to dispose of this issue before considering the others. The main thrust of this issue which is developed from ground 1 of the grounds of appeal is that since the claim to stop the appellant from wearing a crown is regarded as a chieftaincy dispute, which was in Adanji v. Hunvoo (supra) held to be a mere dignity which conferred no proprietary right, respondents have no locus standi,since the right claimed did not give rise to a cause of action.

It is necessary to explain the misconception which has arisen from the old case of Adanji v. Hunvoo. In Adanji v. Hunvoo (supra), the claim was for the title of the Fiyento of Badagary, which undoubtedly is a mere dignity.

[1990] 1 .
Afolayan v. Ogunrinde
(Karibi-Whyte, J.S.C. )
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The accompanying privileges and rights were not in issue. In the instant case, respondents are claiming the exercise of a right consistent with the native law and custom of Oko to restrain the appellant from conducting himself in a particular manner namely to wear a crown, contrary to their law and custom.

It seems to me that the gravamen of the issue lies in the nature of the claim of the respondents. The evidence before the court, and consistent with the statement of claim and found by the trial Judge was that by the native law and custom of the Oko people no chief is entitled to wear a crown. The 1st respondent is the paramount Chief of the Oko people to which the appellant belongs. It is in the interest of the 1st respondent and all the respondents that the custom is preserved and protected.

It seems to me indisuptable that the native law and custom of the Oko people has recognised the custom which prevents chiefs from wearing crowns. The same custom has recognised the right of the respondents as custodians of the laws and custom of the people to protect such rights. This custom has not been described as repugnant to natural justice, equity and good conscience. The policy of the legislation is that the courts will enforce the observance of native laws and custom in so far as they have not been varied or suspended by law – See Laoye v. Oyetunde (1944) A.C. 170. The courts are empowered under S.34 of the High Court Law to enforce native laws and customs wherever they are applicable. Thus where the rights sought to be enforced arise from native law and custom, they came within the legal rights referred to in section 236 of the Constitution 1979 in respect of which the g High Court has jurisdiction.

One then may ask what this right is? As I have said, it is an interest recognised and protected by the law. In this regard I will rely and adopt Salmond’s description of a right. He says that every right involves a threefold relation in which the owner of it stands –

“(i) It is a right against some person or persons

(ii) It is right to some act or omission of such person or persons

(iii) It is a right over or to something to which that act or omission relates.”

See Salmond on Jurisprudence Tenth Edition at p.234. See also Paton – Jurisprudence 3rd Ed., p. 250. Respondents are claiming the right to determine whether appellant or any other chief can wear a crown. This is a right in respect of the act over the right to wear a crown which appellant purports to claim. This interest of the respondents as I have already stated is recognised by native law and custom and protected by the Constitution. This is the characteristic mark. It is therefore a legal right accompanied by the power of enforceability by the instituting of legal proceedings.

The above analysis of the nature of the interests of the respondents in the claim of the appellant to wear a crown, and of the recognition and protection of such interest by the law, the respondents have a legally enforceable interest which confers upon them the right to bring the action. Counsel to the appellant is therefore clearly wrong to contend that respondents have no right to a cause of action.

In many recent decisions of this court, the expression “cause of action”

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has been defined. Quite simply put, “a cause of action” is the factual situation which enables one person to obtain a remedy from another in court with respect to an injury – See Att.-General of Oyo State v. Bello & Ors. (1986) 5 N.W.L.R. (Pt.45) p.828. See also Thomas v. Olufosoye (1986) 1 N.W.L.R. (Pt. 18) 669.

The cause of action of the respondents as pleaded in paragraphs 1, 2, 3, 4, 7, 8, 9, 11, 13 of their statement of claim arc as follows –

“1. The 1st plaintiff is the Oba Oko, the Oloko in Irepodun Local Government of Kwara State.

2.
The Oloko of Oko is the only Oba in Oko land and under the Oloko are the following Chiefs in the order of their seniority:-

(a)
The Esa of Odo Oko Ward who is the second plaintiff

(b)
Aro of Irapa Ward who is the third plaintiff

(c)
Odofin of Inishan Ward

(d)
Asanlu of Owaro Ward

(e)
Ipetu of Irapa Ward

(f)
Oye of Iwoye Ward

(g)
Oye of Odo Oko Ward

(h)
Edemorun of Idemorun Ward – the fourth plaintiff

(i)
Enitshan of Inishan Ward, the defendant

(j)
Olowa of Owaro Ward

(k)
Onigbin of Odo Aba Ward.

3.
The Enitshan of Inishan Ward is the tenth in order of seniority of the Oba and Chiefs in Oko.

4.
There are seven wards in Oko made up as follows:

(a)
Oko Isale or Okerigbo consisting of Irapa, Inishan and Iwoye

(b)
Four other wards at Oko-Oke.

7.
By the tradition and custom of Oko people of which Inishan is part no chief ever wears a crown.

8.
In contravention of age long tradition of Oko people and in defiance of the Oloko the defendant has made several attempts to crown himself.

9.
In September, 1978 the defendant made an attempt to crown himself and he was reported to the Irepodun Local Government and the Omu-Aran Police Command.

  1. The 1st plaintiff has suzerainty over all the wards comprising Oko.
  2. All the other chiefs, senior to the defendant and those junior to him are against the defendant crowning himself because it is untraditional and it has no customary law or practice to support it.”

These averments established not only the hierarchy of authority in the Oko people as regards the wearing of crown by their chiefs. They above all established the attempt by the appellant to wear a crown in contravention of the native law and custom of the people and in defiance of the established hierarchy of authority.

These averments also show that the appellant has given respondents their cause of complaint to the court. The contention of learned counsel for

[1990] 1 .
Afolayan v. Ogunrinde
(Karibi-Whyte, J.S.C. )
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the appellant that respondents did not plead or prove that they would lose anything by his conduct is clearly not correct. Chief Olorunnisola, learned counsel to the respondents has pointed out, and I entirely agree, that the conduct of appellant in flagrant disregard of established native law and custom and defiance of the 1st respondent by wearing a crown was potentially, if not stopped causing the Oko people loss of stability, peace and harmony, and particularly undermining the authority of the 1st respondent.

I therefore see no substance in ground 1, and the 1st issue is answered in the affirmative.

I now turn to issues 2, 3 and 4 which flow from grounds 2, 3 and 4.

It seems to me that the issues raised herein involve mixed law and fact. It is well settled law that issues of fact are best settled by the trial courts where issues of fact are largely decided. This is because the court of trial has had the opportunity of determining the credibility after seeing, hearing and observing the demeanour of the witnesses before them. Thus appellate courts which deal with the printed record and cold facts should be very wary in substituting their own views of the facts of a case for those of the trial court – See Ebba v. Ogodo [1984] 1 SCNLR 372.

However, this proposition does not affect issues relating to the evaluation of the evidence of witnesses. In such cases, the appellate court is in as much a favourable position as the court of trial – See Onowan v. Iserhein (1976) 9-10 S.C. 95; Shell-BP v. Pere Cole & Ors. (1978) 3 S.C. 183.

The Court of Appeal adopted the well trodden path of the courts by refraining from interferring with findings of facts based on the credibility of witnesses. There is overwhelming evidence that Inishan claimed by appellant as a separate autonomous village is a constituent part of Oko community. The evidence of native law and custom relating to the wearing of crown by chiefs in Oko Community remained uncontroverted. The innovation attempted by appellant to wear a crown has no precedent. These were clear findings by the trial Judge and accepted by the court below.

Thus the facts sought to be reversed are concurrent findings of facts in the two courts below. This court has repeatedly laid it down that it will not interfere with concurrent findings of facts, except where the findings are shown to have been perverse or were arrived at in violation of some principles of law or procedure. Appellant has not succeeded in discharging this burden however much he tried. This court will not therefore interfere with the findings on which the judgments of the courts firmly stand. The findings are therefore further affirmed – See Enang v. Adu (1981) 11-12 S.C. 25 at p.42, Lokoyi v. Olojo (1983) 8 S.C. 61, [1983] 2 SCNLR 127; Alade v. Alemuloke (1988) 1 N.W.L.R. (Pt.69) 207.

Grounds 2 and 3 are hereby dismissed.

Issue No. 4 rests on the meaning of the name of the ancestors of the appellant as a claim to his right to wear a crown. Apart from the fact that this is an unsafe ground to rely why appellants still live in a community where his ancestry is subordinated to some others in that community in the hierarchy of authority, the political hegemony of a descendant of Oduduwa in that community was not established by any evidence before the learned trial Judge. The courts below were right in rejecting the claim which I hereby also

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reject. It is a claim in rejecting the claim which I hereby also reject. It is a claim made without foundation and is clearly untenable. The ground of appeal is therefore misconceived.

I refer finally to the two additional grounds of appeal. The grounds attempt to fault the judgment on the ground that the action was not properly constituted since the Inishan Community, appellant’s community, was not made a party to the action. I regard this ground as a misunderstanding of the complaint of the respondents’ and the nature of the declaration and the reliefs sought. No averment in the pleadings complained against the conduct of the Inishan Community. The complaint was against the appellant and his insistence and intransigence on wearing a crown in defiance of the hierarchy of the established and accepted native law and custom. What the Oko Community has accepted is their law and custom. It will require the Community as a whole unanimously or by persuasion through the introduction of something different to change it. But before any such change it remains their law – See Lewis v. Bankole (1908) 1 N.L.R. 81. Since appellant is claiming the right to wear a crown, the onus is on him to satisfy the court that there is a modification of Oko native law and custom to that effect and in his favour – See Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1931) A.C. 662. The Inishan Community has not been alleged to have violated the native law and custom of the Oko Community; only the appellant did. There is therefore only a cause of action against the appellant. It would have been wrong to have joined the Inishan Community. The action is therefore properly constituted. The additional ground 1 fails. In the light of this, ground 2 also fails since the Inishan community was not alleged to have made any claims for their Chief to wear a crown on their behalf contrary to the established custom of the Oko Community.

For the above reasons, I dismissed this appeal on the 27th November, 1989.

AGBAJE, J.S.C.: On 27th November, 1989 I dismissed the appellant’s appeal summarily. I indicated then that I will give my reasons today for doing so. I now proceed to do so.

The appellant was the defendant in an action instituted against him by the respondents as plaintiffs in a Kwara State High Court holden at Ilorin.

The plaintiffs, Oba Joshua Ogunrinde, the Oloko of Oko and three others sued the defendant Chief Adenigba Afolayan, the Enishan of Inishan ward, claiming against him as follows:-

“The plaintiffs are seeking against the defendant a declaration that:-

  1. the defendant being a ward head of Inishan within Oko village in Kwara State is not entitled under Oko Native law and custom to wear any crown without the consent and approval of the Oloko of Oko and his chiefs.

2.
the defendant should not wear any crown without the consent and approval of the Oloko of Oko and his chiefs.”

Pleadings were ordered, filed and delivered. The case proceeded to

[1990] 1 .
Afolayan v. Ogunrinde
(Agbaje, J.S.C. )
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trial before Oyeyipo, J. as he then was. Having heard the parties and their witnesses the learned trial Judge found in his judgment dated 31st March, 1981 for the plaintiffs. In his judgment he made the following findings:-

“I accept their (plaintiffs’) testimony that under Oko native law and custom no Oloko ever wears a crown and a fortiori no sub-chief who is subordinate to Oloko can ever wear a crown under that custom. I also find as a fact from the evidence of the plaintiffs and their only witness and which evidence I accept in its entirety that Inishan is a ward in Oko hence it is called lie Inishan-Oko. I also find as a fact that the defendant is a ward head, in Oko. Clearly the evidence of the plaintiffs and their witness which I have accepted in this case leaves me in no doubt that Oko society is clearly monarchical in its political complexion and has fully evolved into a Chiefship in that all and sundry at Oko accepts the hegemony of the Oloko.

On the other hand I find the defendant and his only witness to be unreliable witnesses ………………………………………………………………………………………………

…………………………………………………………………………………………………………….

I find the evidence of the defendant that he inherited his right to wear the crown from one Tewogbade to be unreliable and I reject that evidence…………….

………………………………………………………………………………………………………………

It is this status quo which the defendant has sought to destroy in his defiance of the hallowed native law and custom of Oko as regards the issue of wearing a crown. In short the plaintiffs’ have amply proved their case on the preponderance of evidence against the defendant and accordingly I hereby grant the plaintiffs the declaration sought by them as per their writ of summons herein.

Judgment is accordingly entered in favour of the plaintiffs.”

It is not contended before us that the findings of fact of the learned trial Judge were not supported by the Statement of Claim of the plaintiffs. Indeed a perusal of this document shows that the facts found by the learned trial Judge, each of them were supported by the plaintiffs’ pleading. The main contention of counsel for the appellant before us and in the lower court appears to be that the plaintiffs had no cause of action against the defendant in, the present action instituted by them against him. Halsbury’s Laws of England Third Edition Volume 1 page 6 Article 9 tells us the meaning of the expression “Cause of Action”:-

“9.
Popular and strict meanings. The popular meaning of the expression “cause of action” is that particular act on the part of the defendant which gives the plaintiff his cause of complaint (a) There may, however, be more than one good and effective cause of action arising out of the same transaction (b) Strictly speaking, “every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse” (c) forms an essential part of “the cause of action,” which “accrues” upon the happening of the latest of such facts

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(d) Consequently, in any particular case, “the cause of action,” strictly so called can only be said to arise within a certain local area, in which case (as it is often stated somewhat tautologically) the “whole” cause of action so arises.”

There can be no doubt in my view that on the facts pleaded and found proved by learned trial Judge the plaintiffs have established not only the particular act on the part of the defendant which gave them their cause of complaint against him, they have also established every fact which was material to be proved by them in order to succeed on their claims against the defendant. This being so, I am satisfied that the plaintiffs have a cause of action against the defendant.

There is also the point made by counsel for the defendant before us that this action between the plaintiffs and the defendant alone was not properly constituted in that a necessary party i.e. the Inishan Community, was not made a party to the proceedings by the plaintiffs. Counsel for the plaintiffs has not shown in what way the presence of Inishan Community before the court was necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the present action.

For my part, I cannot say that the presence of Inishan Community before the court is necessary before the claims of the plaintiffs against the defendant can be effectually and completely decided. In short I see no substance in this argument of counsel for the plaintiffs.

The findings of fact made by the trial court were affirmed by the Court of Appeal. I can find no justifiable reason to interfere with the concurrent findings of fact.

It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother, Obaseki, J.S.C., which I have had the privilege of reading in draft, that I dismissed the appellant’s appeal on 27th November, 1989.

Appeal dismissed

as the judgment of the court below has already been stayed, it was superfluous for the Applicant to ask again for another stay.

Held (Unanimously granting the Application):

1.
It is a convenient course that a person interested who wishes to question a judgment affecting his interests, should be enabled to carry the judgment to appeal without going through a more elaborate course of starting new proceedings with the necessity of a fresh trial at first instance, Johnson v. Adereru 13 W.A.C.A. 297 P.C. refers.

2.
What a court has to consider when leave to appeal is being sought by an interested party is to decide whether the applicants or either of them are prima facie persons with an interest. If leave is granted it will therefore determine no more than that as to their status and the issues of the actual appeal remain to be determined unfettered by the preliminary prima facie finding.

3.
The phrase “at the instance of any other person having an interest in the matter” is dearly not intended to apply to a person who stands by and allows his battle to be fought, to his knowledge, and on his behalf, by other members of his community and who then applies because he does not like the judgment, for leave to appeal against it.

4.
Since the Applicant was never made a party to the action between the Plaintiff and the Defendant nor was he put on notice and heard before the Orders of the court were made and he built on one of the two plots in controversy in the action, and the building had been completed and was occupied, nor has he stood by while the action was being fought, he qualifies to be an interested person within the provisions of Section 222 of the Constitution.

5.
Even if the Applicant is a privy of the Defendant, this cannot preclude him from seeking leave to appeal under section 222 of the Constitution. In fact by being a privy, he must be a “party interested.”

6.
In any event, that a person who is not a named party to an action is bound by the judgment in that action only comes to be considered when that person sues or is sued in a fresh action.

7.
All the applicant need do at this stage of application is to show prima facie that he is a person interested or affected by the judgment or order being sought to be appealed against.

8.
Since Applicant has not been guilty of any inordinate delay since becoming aware of the judgment and order affecting his interest, the application for extension of time within which to appeal should be granted

9.
The fact that a stay has been granted by the court below does not prevent an appellant coming to this court to ask for stay in the hope of getting better terms.

Nigerian Cases Referred to in the Judgment:

Jarmakani Transport Ltd v Kalla (1965) 1 ALL NLR 77 at p. 79

Johnson v Aderemi (1955) 13 WACA 297

[1987] 4 .
In Re: Afolabi
21

Ogundiani v Araba (1978) 6-7SC 55,86

OLoko v Arogbo (1968) NMLR 68

Sun Insurance Office Ltd v Ojemuyiwa (1965) 1 All NLR 1 at. pp. 3-5

Thanni v Adegboyega (1971) NMLR 369 at 372,373,377

      Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria 1979 Section 222

Constitution of the Federation 1963 Section 117(6)

      Nigerian Rules of Court Referred to in the Judgment:

Court of Appeal Rules, 1981 Order 3 Rule 4(1)

High Court (Civil Procedure) Rules of Oyo State Order 8 Rule 10(2)

      Foreign Rules of Court Referred to in the Judgment:

Supreme Court Rules of England Order 59 Rule 3

Books Referred to in the Judgment:

     Annual Practice 1985 Vol. 1 59/3/2

     Order 59 Rule 3 RSC England p. 814

     Concise Oxford Dictionary

Appeal:

        This was an application to the Court of Appeal for leave to appeal as an interested person and for stay of execution of the judgment of the lower court. The application was granted.

History of Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal Ibadan

Names of Justices that sat on the appeal: Uche Omo, J.C.A. (Presided); Michael Ekundayo Ogundare, J.C.A., (Read the Lead Ruling)

Appeal No.: CA/I/M.219/86

Date of Ruling: Wednesday 17 June 1987

Names of Counsel: R. O. Ogunwole Esq – for the Applicant

E. Ayoade Esq. – for the Plaintiff/Respondent

A. Isola-Gbenla Esq. – for the Defendant/Respondent.

        High Court:-

        Name of High Court: High Court of Oyo State, Ibadan.

        Suit No.: I/334/83

        Date of Judgment: 4/7/86

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Counsel:

    R. O. Ogunwole Esq. – for the Appellant.

E. Ayoade Esq. – for the plaintiff Respondent

A. Isola-Gbenla Esq. for the Defendant Respondent

OGUNDARE, J.C.A. (Delivering the Lead Ruling): By a motion brought under section 222 of the Constitution of the Federal Republic of Nigeria, 1979, Order 3 rule 4(1) of the Court of Appeal Rules, 1981 and the inherent jurisdiction of this Court, the applicant prays this Court for the following orders, to wit,

    (1)
An Order for leave to appeal against the judgment of the High Court Ibadan delivered on the 4th day of July, 1986.

    (2)
An order for Enlargement of time within which to apply for leave to appeal against the said judgment delivered on 477/86.

    (3)
An Order that further steps in execution of the judgment appeal- led from be stayed pending the determination of this Appeal.

    (4)
In the alternative an order setting aside the orders of the High Court made on the 31st day of October, 1986 and 10th day of November, 1986.

The motion is supported by a 16-paragraph affidavit and 6 annexures which include the judgment in Suit No. 1/334/83 and an order for stay of execution of the said judgment. The penultimate paragraphs of the said affidavit sworn to by the applicant read as follows:

“2. That the Plaintiffs Claims against the defendant in the High Court were as follows:

(i)
Declaration of title to a Certificate of Occupancy in respect of the piece or parcel of land situate, lying and being at Olojuoro Road, Ibadan. 

(ii)
The sum of N15,000.00 (Fifteen Thousand Naira) being special and general damages suffered by the-Plaintiff in consequence of continuing acts of trespass being committed by the defendant on the said land.

(iii)
An order of perpetual injunction restraining the defendant, his servants or agents or any person claiming through or (J under him from committing any further acts of trespass on the land.

3.
That judgment was delivered on the 4th day of July, 1986 in favour of the plaintiff. (Photocopy of the said judgments is attached herewith and marked Exhibit ‘A’.

4.
That I was not aware of the case and I was not joined as a party. 

5.
That by a letter dated 4/8/86, Messrs Ayoade & Co. wrote Ishola Gbenla (Esq.) and a copy was sent to me. (Photocopy of the said letter is herewith attached and marked Exhibit ‘B’.

6.
That on the receipt of a copy of the said letter I took it to my Solicitors and I instructed him to write the Plaintiff’s Counsel that I purchased the land on which I built upon from Alhaji Momoh Akindele head of Oya Esan family who had been adjudged the

[1987] 4 .
In Re: Afolabi
(Ogundare, J.C.A.)
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owner of the land in Suit No. 1/157/71 (photocopy of the said letter is herewith attached and marked Exhibit ‘C’.

7.
That with the explanation I gave, and without any further reply,

I thought the plaintiffs was satisfied with my explanation hence, 1 did not take any step to appeal against the judgment.

8.
That sometime in November 1986, a friend, one Alhaji Odejobi came to inform me and I verily believe that he had (sic) my name mentioned in connection with a case, and that an order has in fact been made against me.

9.
That I went to Court to find out what happened and the Registrar told me and I verily believe that an order has been made against me that I should be paying the rent collected from my building into Court. (Photocopies of the said orders are herewith attached and marked Exhibits ‘D’ and ‘E.

10.
That I am an interested party as the judgment and orders of the court affect my building.

11.
That I am dissatisfied with the judgment and the Notice of Appeal is attached herewith and marked Exhibit ‘F’.

12.
That unless the order is stayed or set aside, the Plaintiff will execute the said order on my property.

13.
That my Solicitors told me and 1 verily believe that the time within which to appeal has since expired.

14.
That the delay in failing to appeal within time was due to inadvertence since I reasonably thought that the Plaintiff was satisfied with my explanation as contained in my Solicitor’s letter referred to in paragraph 6 above.

15.
That I am interested in prosecuting the appeal and my Solicitors told me and I verily believe that substantial and interesting points of law are involved in the appeal as contained in the Notice of Appeal and my chances of success are indeed considerable.”

The plaintiff/respondent filed a counter-affidavit sworn to by one Alhaji Latifu Ajani, a law clerk in the chambers of plaintiff solicitors, Messrs Emiola Ayoade & Co. The affidavit reads in part:

“(3)
That I am informed by the plaintiff and I have reasonable cause to believe that paragraphs 4, 8 and 14 of the affidavit in support of this application are untrue

 (4)           That throughout the duration of the proceedings in the trial court, Alhaji Lamidi                  Afolabi now purporting to be an intervener accompanied the defendant to court                  and was in fact being proposed as a witness but was later dropped for some                        unknown reason, and he was aware of the existence of this suit throughout its

                
 duration.

(5)          That the purported intervener commenced his building on a portion of the land         in dispute during the pendency of this suit in court.

(6)       That I am also informed by the plaintiff and I have reasonable cause to believe     that both the defendant and the intervener are very close friends and on several     occasions when the plaintiff visited the land in dispute, during the pendency of     this suit, the “intervener” in this application joined the defendant in ridiculing       him, calling him a poor teacher and a thief and boasting that he

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        (the plaintiff) was wasting his time in court on a suit in which he could never  succeed, instead of staying in the classroom which was his rightful place, and that he could never win a case against them who are well to do.

(7)
That I am informed by the plaintiff and I have reasonable cause to believe that while the building operation on a portion of the land was in progress it was difficult to know who of the defendant and the “intervener” was actually building on the land as they were very close friends and were usually found together in the place and it was generally believed at the time that the building belonged to the defendant.

(8)
That in fact it was through his amended statement of Defence at the hearing of this suit that the defendant claimed or disclosed for the first time that he had sold one of the two plots in dispute to the now purported intervener, and photocopies of the Writ of Summons, Statement of Claim, Statement of Defence, Amended Statement of Defence are herewith attached and marked Exhibits ‘A’ ‘B’ & ‘C’ and ‘D’ respectively.

(9)
That I am informed by the plaintiff and 1 have reasonable cause to believe that the claims of the “intervener” that he purchased a portion of the land from one Oyaesan family is an after-thought and the purported intervener is either a front for the defendant or is at best a claimant through or under him as alleged by the defendant himself in paragraph 21 of his Amended Statement of Defence and Counter-Claim.

(10)
That I am informed by the plaintiff and I have reasonable cause to believe that Oyaesan family land in that area is distinct and separate from the land in dispute and has nothing whatsoever to do with it.

(11)
That this application has not been brought in good faith.”

To this affidavit are annexed 4 exhibits.

In the course of the hearing of the motion, it became necessary for the applicant to swear to 3 further affidavits and to annex to two of these affidavits the judgment and plan in Suit No. 1/157/71: M.S. Akindele v. S. B. Adewunmi and a composite plan showing the land in dispute in the suit leading to this motion in relation to areas claimed in the various suits affecting land in the area, that is, Suits Nos. 1/288/64, 1/157/71 and 1/334/83. In the first further affidavit sworn to by the applicant on 27th January, 1987 he deposed,inter alia, as follows:

“3.         That I deny paragraphs 3, 4, 5, 6, 7, 9, 10, 11 and 12 of the Counter Affidavit.

4.
That with further reference to paragraphs 4 and 6 of the Plaintiff’s Counter Affidavit, I am not at all familiar with the defendant, I was not aware of the case and in actual fact up till now, I do not know the Plaintiff in person.

5.
That with further reference to paragraphs 8, 9 and 10 of the Plaintiffs Counter Affidavit I purchased the land in dispute from Oya Esan family in 1977 and the Accredited Representative and head of the family, Alhaji Mohammed Akindele gave me a receipt. (The receipt is herewith attached and marked Exhibit ‘G’

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6.
That I later applied for Certificate of Statutory Right of Occupancy which was duly published, (photocopy of the said Certificate is herewith attached and marked Exhibit ‘H’).

7.
That with further reference to paragraphs 5 and 7 of the Plaintiffs Counter Affidavit, I completed the building on the land in dispute sometime in 1980, and it was let out almost immediately to a Nursery School long before the commencement of the Plaintiff’s action in the High Court.

8.
That the land in dispute falls on Oya Esan family land which was in dispute in Suit No. 1/157/71 and over which they have been adjudged the owners.

9.
That the Counter Affidavit was sworn to in bad faith.”

       In moving the motion, Mr. Ogunwole, learned counsel for the applicant referred us to section 222 of the Constitution of the Federal Republic of Nigeria, 1979 and observed that the applicant was not a party in the suit in the lower court where judgment was entered against the defendant. The latter, according to counsel, appealed and thereafter sought an order for a stay of execution of the judgment pending the determination of his appeal. Learned counsel further observed that the order for stay was granted on condition that rents accruing from the building on part of the land in dispute and belonging to Alhaji Aranse Afolabi, that is, the applicant herein be paid into court by the present applicant. Learned counsel further observed that applicant’s building was already standing on part of the land at the time of the institution by the plaintiff of his action against the defendant over the land. The applicant was not joined as a party even though the defendant denied ownership of the building. After making references to O.8 r. 10(2) of the High Court (Civil Procedure) Rules of Oyo State and some of the exhibits attached to the various affidavits before us, learned counsel submitted that the applicant was not a privy to the defendant because he purchased the land on which he built from a family who had obtained judgment over the land. Mr. Ogunwole observed that the applicant came to know of the action between the plaintiff and the defendant when he received Exhibit B to the main affidavit from plaintiff’s counsel and he reacted by causing his solicitor to write Exhibit C in reply. Learned counsel said that the applicant was not served with the defendant’s application for stay before an order was made against him. He submitted that the applicant was a “party interested” and, relying on the various authorities on his list of authorities, urged this Court to grant the prayers sought.

Mr. Ayoade for the plaintiff, opposed the application. In his address before us he made the following points:

1.
that applicant’s contention that he is not a privy to the defendant is contrary to all the facts upon which the suit was fought.

2.
that if the applicant is found to be a privy to the defendant, the judgment against the defendant binds the former.

3.
that the applicant is not a party interested within the meaning of section 222 of the 1979 Constitution.

4.
that the present application is not brought in good faith in that the defendant not only pleaded but also testified at the trial to the effect that he sold one of the two plots in dispute to the applicant.

5.
that Exhibits G (the receipt of purchase allegedly issued to the applicant by Alhaji M. Akindele as head of Oya Esan family) and (the Certificate of Statutory Right of Occupancy issued by the

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Governor to the applicant in respect of the land on which he built) are not genuine.

6.
that the applicant cannot claim ignorance of suit No.1/334/83 between the plaintiff and the defendant as he must have known what was going on next door to him. He cited Olaja-Oriri v. Aokotie-Uro (1973) 1 All NLR (Part II) 272

        
  
                    
  7.      that the applicant’s remedy lies in instituting a new action and not appealing against the judgment or order in Suit No. 1/334/83 as he claims through someone not a party in that suit. Cites Thanni v. Adegboyega (1971) . 369 at pp. 372, 373 & 377 in support.

8.
that as the judgment of the court below has already been stayed it is superfluous for the applicant to now ask for stay.

Mr. Isola-Gbenla for the defendant does not oppose the motion.

A number of issues have been raised in the course of the hearing of this application that are, in my respectful view, either not relevant at this stage or are unnecessary for the determination of the application. For the purpose of this application the relevant facts are: In Suit No. I/334/83, the plaintiff herein sued the defendant over a piece of land consisting of two building plots, claiming (a) declaration of title to a certificate of occupancy in respect of the said land situate at Olojuoro Road, Ibadan; (b) N15,000 general damages for trespass and (c) an injunction. By his statement of claim the plaintiff traced his root of title to Aleshinloye family to whom a large acreage of land including the land in dispute was surrendered by one S.B. Adewunmi following a settlement out of court of Suit No. 1/288/64 involving the said Aleshinloye family and S.B. Adewunmi. The suit was withdrawn and consequently struck out. Sometime later the Aleshinloye family sold part of their land to one Madam Dorcas Ajirinmibi who, in 1977, sold and conveyed the land in dispute in Suit I/334/83 to the plaintiff out of the portion sold and conveyed to her by the Aleshinloye family. In 1980 the defendant went on part of the plaintiffs land and started building on it. This led to suit I/334/83.

By his own amended statement of defence, the defendant claimed through S.B. Adewunmi. He admitted the suit between Aleshinloye family and S.B. Adewunmi and the terms of settlement out of court. He claimed that the land in dispute formed part of the land given to S.B. Adewunmi by the Aleshinloye family as a result of the settlement. He counter-claimed for title, damages for trespass and injunction and in his statement of counterclaim, averred that he sold one of the two plots (Plot 16) he purchased from S.B. Adewunmi to one Afoiabi.

At the conclusion of hearing, the learned trial Judge (Olowofoyeku, J) on 4/7/86 found for the plaintiff and entered judgment in his favour. Whereupon the defendant appealed to the Court of Appeal. Thereafter, he brought an application for stay of execution pending appeal. The application succeeded and the following orders were made on 31st October by Oguntoye, J:

“The order of perpetual injunction granted on 4th July, 1986, is

hereby suspended pending the determination of the appeal to the extent only set out hereunder:-

     
(1)
The Plaintiff by himself, his privies, agents, servants or any person claiming through or under him or howsoever be and is hereby restrained:

(i)
from demolishing the uncompleted structure erected by the

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Defendant on the land in dispute

(ii)
from demolishing the building erected by Alhaji Aranse Afolabi on the land in dispute,

(iii)
from evicting the tenants or any of them placed in and occupying the building erected on the land in dispute by Alhaji Aranse Afolabi provided:-

     (a)
that the rent in the manner hereinafter set out found to be due and payable by the said tenants from the date of the judgment to date be paid into Court by Alhaji Aranse Afolabi within seven days of the making of the further order in that respect and provided further,

    (b)
that such rents found to be due and payable continue to be paid into Court thereafter by Alhaji Aranse Afolabi within seven days of the due date.

(2)
And it is further ordered that upon default of payment as ordered in respect of any tenant such tenant shall cease to have the protection of this order which shall become null and void and of no effect in respect of that tenant.

(3)
The operation of the order made on 4th July, 1986 in so far as it affects the Defendant personally is hereby suspended for a further period of seven days to the extent that the Defendant and/or his servants may enter the land and remove the building materials placed thereon by the Defendant.

(4)
This application is adjourned to a date to be now fixed to enable Counsel to lead evidence as to the rent paid or payable in respect of the premises erected by Alhaji Aranse Afolabi on the land in dispute.”

Meanwhile, by a letter dated 4th August 1986 plaintiffs counsel demanded from the defendant through his counsel the damages and costs awarded. The letter was endorsed to the present applicant intimating him of the terms of the judgment affecting his building. The applicant through his solicitors, Ogunwole & Co wrote back to plaintiff’s counsel on 28/8/86. Paragraphs 2 and 3 of the letter read as follows:

“Our client told us that he purchased his piece of land from Alhaji Momoh Akindele who was adjudged as having the radical title of a larger parcel of land; in Suit No. 1/157/71 Mohammed Sanusi Akindele vs. Samuel Binuyo Adewumi. We have a copy of the said judgment. Our client’s piece of land forms part of the said larger parcel of land.

From the foregoing, it is clear that our client did not derive his title from Alhaji Raufu Gbadamosi against whom you got judgment, in consequence therefore, the judgment against Alhaji Raufii Gbadamosi does not bind our client, since our client is not a privy of Alhaji Raufu Gbadamosi.”

These paragraphs sum up the applicant’s case as deposed to by him in the affidavits in support of his motion.

It is not in dispute that the applicant was never made a party to the action between the plaintiff and the defendant nor was he put on notice and heard before the orders of Oguntoye J were made on 31st October, 1986. It is equally not

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in dispute that he built on one of the two plots in controversy in the action and it was in evidence before the trial Judge that the building had been completed and was being occupied.

The learned trial Judge, in awarding an order of injunction in favour of the plaintiff said:

“I accordingly hereby grant an order of injunction against the defendant as claimed but having regard to the fact of the evidence before me that part of the land in dispute has been fully developed and is now being lived in, I shall and do hereby suspend the order of injunction for a period of three months.”

(Italics is mine)

I have already stated in extenso the subsequent orders made by Oguntoye J on an application by the defendant for stay of execution. The only reasonable inference, in my respectful view, to be drawn from both the judgment and the order for stay is that the applicant’s interests are affected by both.

    He is, therefore, a “party interested” within the meaning of section 222 of the 1979 Constitution which reads:

  1. Any right of appeal to the Court of Appeal from the decisions of a High Court conferred by this Constitution –

(a)
shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the High Court or the Court of Appeal at the instance of any Other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;

(b)
shall be exercised in accordance with any Act of the National Assembly or Decree and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

See: Johnson v. Aderemi (1955) 13 WACA 297 PC; Oloko v. Arogbo (1968) NMLR 68; Ogundiani v. Araba (1978) 6-7 SC 55, 86. In Johnson v. Aderemi (supra) Lord Raddiffe, delivering the advice of the Privy Council to the Queen in the case said at page 299 of the Report:

“On the contrary it seems an obviously convenient course that persons interested who wish to question a judgment affecting ® their interests, as the respondents did, should be enabled to carry the judgment to appeal without going through the more elaborate course of starting new proceedings with the necessity of a fresh trial at first instance.”

This disposes of one of the points raised by Mr. Ayoade.

Mr. Ayoade has drawn our attention to the Supreme Court case of Thanni v. Adegboyega (supra). With respect I find nothing in the judgment in that case to preclude us from granting the applicant leave to appeal. In that case the Supreme Court in granting leave under section 117(6)(a) of the Constitution of the Federation, 1963 (which is in pari materia with section 222 of the 1979 Constitution) said at p. 372 of the Report:

“As we see it, what we have to do at this stage is to decide whether the applicants or either of them are prima facie persons

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with an interest. If we grant leave, it will therefore determine no more than that as to their status and the issues of the actual appeal remain to be determined unfettered by the preliminary prima facie finding.”

(Italics is mine)

Mr. Ayoade also relied on Olaja-Oriri v. Aokotie-Uro (supra). In that case the Supreme Court said at pages 280 -281:

“Notwithstanding the leave sought and granted in the Warri High Court to the two appellants to appeal against the judgment of 22nd December, 1969, we are unable to follow the reasoning of the learned trial judge in regarding them as “interested persons” within the meaning of section 117(6)(a) of the Constitution of the Federation after he had advised them in his ruling of 24th October, 1969, to apply to be joined as defendants and they have apparently refused. The appellants were in the case right from the start. They were replaced by another set of defendants by order of the court which heard the case. They ignored the court’s observation that any application brought by them to be joined as defendants in their own right would be entertained. They did not appeal against the order replacing them. They stood by and watched the proceedings to finality. Thereafter, they asked to be granted leave to appeal as “interested persons”. To claim to be “interested persons” as they have successfully done in this case, is a gross abuse of the process of the court and contrary to the purpose and intent of section 117(6)(a) of the Constitution. The section reads:-

117(6)(a). Any right of appeal to the Supreme Court from the decisions of the High Court of a territory conferred by this section-

(a)
shall be exercisable in the case of civil proceedings at the instance of a party thereto or, with the leave of the High Court or the Supreme Court at the instance of any other person having an interest in the matter……”

The phrase “at the instance of any other person having an interest in the matter” is clearly not intended to apply to a person who stands by and allows his battle to be fought, to his knowledge and on his behalf, by the other members of his community and who then applies, because he does not like the. judgement, for leave to appeal against it. Incidentally, the circumstances in which the section has been successfully invoked in this court will be found in our judgement in Sun Insurance Office Ltd. v. Victoria O. Ojemuyiwa (1965) 1 All N.L.R. 1 at pages 3-5, but the facts of that case are certainly not in pari materia with those of the case in hand. Because the facts of the case in Jarmakani Transport Ltd. v. Alhaji Kalla (1965) 1 All NLR. 77 at page 79, are also different, this court refused an application for leave to appeal made under the section by a person who claimed to be an “interested person.”

In Sun Insurance Office Ltd v. Ojemuyiwa (1965) 1 All NLR I cited in OLAJA – ORIRI’s case, the Supreme Court said at pages 3 – 4 of the Report: “The Insurers then applied to the High Court for leave to appeal

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from the judgement, but their application was struck out on the 26th October, 1964; and now they apply to the Supreme Court for leave to appeal as an interested person under section 117(6)(a) of the Constitution of the Federation, and their manager states in his affidavit that the delay is due to the evasiveness of the lorry owner, who had promised to come to the High Court Registry and swear an affidavit.

One of the objections made on the respondent’s behalf is that the Insurers could have appealed within the prescribed time in the name of the lorry owner, but did not. We do not think that is right: the provision in the Constitution is as follows:

Section 117(6) – “Any right of appeal to the Supreme Court from the decisions of the High Court of a territory conferred by this section –

(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto or, with the leave of the High Court or the Supreme Court at the instance of any other person having an interest in the matter and in the case of criminal proceedings “

The phrase “at the instance of” means at the request of, or at the suggestion of, in current English: see the Concise Oxford Dictionary. In our opinion, when an appeal is brought in the name of a party, it must be on his instructions, and a person having an interest in the matter cannot launch an appeal in the name of a party but must obtain leave to appeal. The English cases on what the underwriters may or may not do in proceedings against the person insured cannot affect the plain meaning of the above provision in the Constitution. The lorry owner does not wish to pursue the matter: the Insurers have no choice but to apply for leave to appeal.

The respondent objects that the Insurers have no interest in the matter. Her learned counsel has referred to sundry provisions in the Motor Vehicles (Third Party Insurance) Act, on the liability of insurers and on the defence against liability which the Act accords to insurers. It strikes us that the argument is very much like the dissenting judgement of Slesser, L.J. in Windsor v. Chalcraft (supra); we think that the majority judgement of Greer L.J. and Mackinnon L.J. is to be preferred, and accept the Insurers’ claim that they have an interest in the matter which enables them to apply for leave to appeal, which they should be given if there is no cogent reason to the contrary.”

The reason for the refusal by the Supreme Court to grant the prayer sought in Jarmakani Transport Ltd v. Kalla (1965) 1 All NLR 77 “for an order pursuant to section 117(6)(a) of the Constitution of the Federation that the British India General Insurance Company Limited may exercise the right of appeal against the decision of the High Court………” was given by the Court per Bairamian JSC at page 79 of the Report thus:

“The present Insurers rely on that decision, but their notice of motion does not pray either for leave to appeal or for extension of time, although their motion is more than three years since the judgement, and their affidavit does not give the date of going to 

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arbitration or the date of the award and of payment to Jarmakanis. There is no effort to explain and justify the delay, and the reason why the notice of motion is framed as it is, and why the affidavit is so meagre, is doubtless this – that the present Insurers want an order to prosecute the appeal brought by Jarmakanis; for their learned counsel’s argument is that as they have paid Jarmakanis, they stand in their shoes and can proceed against Albaji Kalla. But Jarmakanis do not wish to prosecute their appeal against him; in fact they gave it up in January; 1962; and in any event it would be contrary to the spirit of section 117(6)(a) of the Constitution of the Federation to authorise a person to prosecute an appeal in the name of a party who does not Wish to go on with his appeal.

If there is to be an appeal at all, it must be in the name of the Insurers as the appellants by leave of court coupled with an extension of time, but the notice of motion does not apply for either leave of extension, and either for this reason or for the former one this application must be refused.”

In my humble view, the facts of the matter before us are not apposite with the facts in OLAJA-ORIRI’s case: There, there was abundant evidence to justify the finding that the appellants who were at a time parties in the action “stood by and watched the proceedings to finality” after having been replaced without their appealing against the order replacing them. There is no such evidence against the applicant in the matter before us except for the allegations in the counter-affidavit sworn to by plaintiff’s counsel’s law clerk to the effect that the applicant accompanied the defendant to court throughout the trial and was in fact to be called as a witness but was dropped. These allegations are denied by the applicant. In any event, the law clerk did not disclose in the counter-affidavit his source of knowledge of the facts deposed to by him.

Another point raised by Mr. Ayoade is that the applicant is a privy to the defendant and, therefore, bound by the judgment obtained against the defendant. Assuming it is correct to say that the applicant is a privy to the defendant, this cannot preclude him from seeking leave to appeal under section 222 of the Constitution. In fact, by being a privy he must be a “party interested”. In any event, that a person who is not a named party to an action is bound by the judgment in that action only comes to be considered when that person sues or is sued in a fresh action.

Having disposed of these legal points raised by Mr. Ayoade, I need only add that all the applicant need do at this stage is to show prima facie that he is a person interested or affected by the judgement or order being sought to be appealed against. As the learned authors of the Annual Practice 1985 Vol. 1 put it in the notes 59/3/2 to Order 59 rule 3, RSC (England) at page 814:

“It does not require much to obtain leave: a person making out a prima facte case that he is a person interested, aggrieved or prejudicially affected by the judgment or order and should be given leave, will obtain it;….. “

I am satisfied that the applicant has discharged the burden on him and I am of the view that he should be granted leave.

For the reasons given in his original affidavit for not appealing within 

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time, I consider it fit and proper to grant applicant extension of time within which to appeal. He has not been guilty of any inordinate delay since becoming aware of the judgment and order affecting prejudicially his interest in his building situate on a part of the land in dispute.

The applicant also prays this Court for a stay of execution of the judgment of the court below given on 4th July 1986 pending appeal. Mr. Ayoade submitted that as that judgment had already been stayed it was superfluous g for the applicant to now ask for stay. It is correct that the court below granted conditional stay on 31st October on the application of the defendant. One of the conditions imposed affected adversely applicant’s interest in that rents accruing from his tenants are to be paid into court pending appeal. He was not a party to that application. The fact that a stay has been granted by the court below does not prevent an appellant coming to this Court to ask for stay in the hope of getting better terms.

The principles governing stay pending appeal are well known and need not be restated here again. After a careful consideration of the applicant’s affidavits and plaintiffs counter-affidavit and the exhibits annexed to all these affidavits, I am of the view, and I so hold, that this is a proper case for granting to the applicant an unconditional stay of the judgement of the court below pending the determination of his appeal (yet to be filed) to this Court. Consequently, I hereby grant to the applicant a stay of execution of the judgment of the High Court of Oyo State holden at Ibadan and given 4/7/86 in Suit No. 1/334/83 pending the determination of the applicant’s appeal to this Court provided, of course, that applicant’s proposed appeal is filed within the time hereinafter to be determined, otherwise this order of stay stands – discharged. For the avoidance of doubt, it is ordered that those parts of the order for stay made by Oguntoye J on 31st October 1986 and affecting the applicant are hereby rescinded.

In conclusion, it is hereby ordered as follows:

(1)
Leave to appeal against the judgment of the High Court of Oyo State sitting at Ibadan and given on 4/7/86 in Suit No. 1/334/83 is hereby granted to the applicant, Alhaji Lamidi Afolabi.

(2)
That time within which to appeal is extended by six weeks from the date of this order.

(3)
That a stay of execution of the said judgment in so far as it affects the applicant is hereby ordered pending the determination of his appeal to this Court provided that if he fails to appeal within the extended time in (2) above, this order for stay stands discharged with effect from the expiration of the extended period to appeal.

(4)
For the avoidance of doubt, it is further ordered that those parts of the order for stay made by the court below on 31st October 1986 and affecting the applicant are hereby rescinded.

(5)
I make no order as to costs.

OMO, J.C.A.: I entirely agree with the views expressed by my learned brother Ogundare, J.C.A. in his lead judgment just delivered and have nothing useful to add thereto.

The main issue before the court is whether or not the applicant can be granted leave to appeal against a judgement which very adversely affects him, in a matter in which it has not been established that he was a party

That he is a person interested therein is not in dispute. The answer to the question posed must therefore be in the affirmative.

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Whether the applicant and/or the plaintiff/respondent is bound by any of the decisions canvassed can only be properly determined at a later stage.

The applicant acted timeously in filing this application in this court, and he is entitled to have his application granted.

I fully endorse the final order made in the lead judgment.

GAMBARI, J.C.A.: I entirely agree with the ruling just delivered by my learned brother, Ogundare, J.C.A., a preview of which 1 have had the privilege of reading.

I have nothing more useful to add thereto.

Application Granted

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