AJOMAGBERIN & ORS v. SALAU & ORS

CITATION: (2018) LPELR-45321(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 29TH JUNE, 2018Suit No: CA/L/256/2002

Before Their Lordships:

TIJJANI ABUBAKAR Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal

Between1. ALHAJI IBRAHIM TAIWO AJOMAGBERIN2. ZAKARIYAU OYEROKUN OJORA3. MUDASHIRU KOPADA(For themselves and onbehalf of DEYARI KUEJI andKUMUYI ruling Houses, theObanikoro Chieftaincy familyof LAGOS)

- Appellant(s)

And1. ALHAJI RAHEEM SALAU2. RAHEEM SALAU (NIG) LTD3. LATEEF GAJI4. KAYODE BAKARE5. LAYI AJAYI-BEMBE6. SOJI AJAYI-BEMBE7. MOSUNMOLA AJAYI-BEMBE(3rd and 7th Defendants aresued for themselves for andon behalf of ILUMO RulingHouses & AJAYI-BEMBEDescendants of ObanikoroChieftaincy Family of Lagos)

- Respondent(s)

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RATIO DECIDENDI1. ACTION - REPRESENTATIVE ACTION: Whether a member of a family can institute a representative action without authorization

"The law is well settled that no family member can institute an action for and on behalf of the family without the expressauthorisation of the family. The law is also settled that any member of the family may defend the action in respect of family landwhere the benefit of success goes to the entire members of the family. In ALH MOH'D LAYINKA GALADIMA OF ILORIN & ORS Vs.ATTORNEY GENERAL OF KWARA STATE & ORS (2004) LPELR-12626 (CA) this Court per MIKA'ILU (JCA) (of blessed memory), whiledealing with whether a member of a family can institute a representative action without authorisation said as follows:"It is trite that no member of a family can institute an action for and on behalf of the members of the family without the consent orauthorisation of the family, but any member can personally defend it family land though the benefit of his success goes to theentire members of the family see: AKAPO Vs. HAKEEM-HABEEB..."I carefully read the decision in AKAPO Vs. HAKEEM-HABEEB & ORS (1992) LPELR-325 (SC), the Supreme Court of Nigeriaconsidered the effect of contracts made by family head/members of the family on behalf of the family. In dealing with this issue,KARIBI-WHYTE JSC said as follows:"Contracts made by the head of the family are valid. See BALOGUN Vs. BALOGUN (1935) 2 WACA 290. On the other hand, noindividual member or collection of members of the family have legal capacity to enter into contracts for or on behalf of the family.Such contracts without the participation of the head of the family are void: - See AGARAN V. OLUSHI (1907) 1 NLR 66".The issue before the lower Court has to do with building lease of the property 108 Nnamdi Azikiwe Street Lagos subject matter oflitigation which gave rise to this appeal. Let me state at this stage that the issue at the Court below has to do with the propriety ofthe lease executed in respect of the property which belongs to the Obanikoro Chieftaincy family. Part of the claim before thelower Court is again reproduced as follows."A declaration that the property situates, lying and being at No. 108 Nnamdi Azikiwe Street Lagos, (otherwise known as P.Z.BUILDING) belongs to the OBANIKORO CHIEFTAINCY FAMILY OF LAGOS.A declaration that the building lease executed in respect of No. 108 Nndmdi Azikiwe Street Lagos in favour of the 1st & 2nddefendants either the 3rd - 6th defendants OR their servant's agent's privies or cohort is wrongful, illegal, null & void and of noeffect whatsoever".The lower Court at page 58 of the records of appeal while striking out the action filed by the Appellants said as follows and Iquote."It is however surprising that while registered instruments of 19th century and early 20th Century were exhibited, there is no iotaof proof that a formal mandate was given by the three branches of the Obanikoro Chieftaincy families represented by thesePlaintiffs to institute this action.I am aware of the submissions of Counsel for the Plaintiffs and the authorities cited to the effect that when it comes to protectingthe interest of the family in property no mandate or authorisation is required or necessary. It is always a good exercise andpractice to read the body of the case law and reports and not merely the abridged precis as the ratio decidendi may be lostthrough abridgment. Circumstance of this case where members of the branches of the Obanikoro Chieftaincy family are fightingover ownership of a property is quite different when compared with external aggression.Even in the much cited authority of AKAPO V HAKEEM-HABEEB (1992) 6 NWLR (pt. 247) 266 at 293 where KARIBI-WHYTE said;"The head of the family can institute actions for and on behalf of the family.The expression of the Supreme Court justice about express mandate seems to me to be a written authorisation duly signed bythose competent to do so...".The central issue considered by the learned trial Judge in arriving at a decision in this case is just that, the Plaintiffs Appellantshave no right to institute an action on behalf of the family without express authorisation to do so. The learned trial Judge tookguidance from the decision of the Supreme Court inAKAPO vs. HAKEEM-HABEEB (supra). I am fully convinced that the learned trialjudge in the instant case properly applied the law as it is. It is the law that head of the family can institute actions for and onbehalf of the family and such actions are valid but to the contrary no individual member or collections of members of the familyhave legal right to enter into contracts for or on behalf of the family, such contracts without the participation of the head of thefamily are void, and no individual member of the family without express mandate from the family can commence action in Courtfor and on behalf of the family, and where a family member or members proceed to commence action on behalf of the familywithout express authorisation the action shall be incompetent and therefore liable to be struck out.The application seeking to dismiss the suit is at page 23 - 25 of the records of appeal, the deponent stated in the affidavit insupport of the motion that he had the authority of the Obanikoro family to challenge the authority of the Plaintiffs to bring theaction, and that he is also a principal member of the Deyari branch of the Obanikoro family and therefore competent to challengethe authority of the Plaintiffs to bring the representative action. Since the deponent in the Affidavit in support of the Applicationdisclosed his status as a member of the family the Appellants seek to represent, a fact which was neither denied nor challengedby the Appellants, it suffices to say that the challenge to the representative capacity of the Appellants was in order, rendering thedecision in ELF-PETROLEUM NIG LTD Vs. DANIEL C. UMAH & ORS (Supra) relied upon by the Appellants inapplicable to the instantcase.Having failed to dislodge the status of the deponent as a member of the family which the Appellants purports to represent, theAppellants cannot be heard to say their capacity to commence the present action cannot be challenged by the Respondents;rather, as the fact on record shows, it is incumbent on the Appellants to show that they have the express authority of the family tocommence the suit.In AKAPO Vs. HAKEEM-HABEEB (Supra), the Supreme Court of Nigeria held as follows and I quote:"It is well established principle of our law that the position of the head of family particularly in societies with recognisedchieftaincies with respect to the control and management of its properties is dominant. The chief is the head of the family. He is incharge and control of the family property. He collects revenue from the family property, and makes recognised disbursements inrespect of legitimate expenditure in the interest and for the purposes of the family.The head of the family can institute actions for and on behalf of the family.Contracts made by the head of the family for and on behalf of the family are valid: See: Balogun v. Balogun .... (1935) 2 WACA.290.On the other hand, no individual members of the family have legal capacity to enter into contracts for and on behalf of the family.Such contracts without the participation of the head of the family are void. See: Agaran v. Olushi (1907) 1 NLR 66.Again, no member of the family without the express mandate from the family can institute action in Court for and on behalf of thefamily. (Underlining mine).I am in complete agreement with the learned trial Judge that, since there was no express authorisation for the Plaintiffs/Appellantsto institute the action on behalf of the Obanikoro Chieftaincy family, the action is incompetent and therefore deserves to be struckout."Per ABUBAKAR, J.C.A. (Pp. 15-22, Paras. E-F) - read in context

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2. APPEAL - REPLY BRIEF: Purpose/function of a reply brief"The Appellants re-argued their appeal again in the amended reply brief, the amended reply is substantially a repetition of thesubmissions of learned Counsel for the Appellants in their amended brief of argument, this is obviously not the purpose of a replybrief, a reply brief is essentially an opportunity for the Appellant to address the new points raised by the Respondent in his brief ofargument where the Appellants brief taken as it is cannot effectively and efficiently tackle the new points, the Appellantsamended reply brief has defeated the purpose of reply brief..."Per ABUBAKAR, J.C.A. (Pp. 12-13, Paras. E-A) - read in context

3. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether an Appeal Court can adopt or formulate issue(s) fordetermination"it is now settled that an Appeal Court may reframe issues for determination in a bid to address the issues of the parties, or adoptissues of the parties where so doing would serve the interest of justice, or/and address the real grievance in the appeal oreffectively resolve the issues in controversy between the parties see: ABIOLA & SONS BOTTLING CO. LTD Vs. SEVEN-UP BOTTLINGCOMPANY (2012) LPELR-9279 (SC), BIARIKO Vs. EDEH OGWUILE (2001) 12 NWLR (Pt. 726) 235 at 265 and OBIUWEUBI Vs.CENTRAL BANK OF NIGERIA (2011) 7 NWLR (Pt.1247) 455."Per ABUBAKAR, J.C.A. (Pp. 13-14, Paras. F-C) - read in context

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TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading

Judgment): The Appellants in this appeal commenced

action against the Respondents at the Court below seeking

for the following reliefs:

a. A declaration that the property situates, lying and

being at No. 108 Nnamdi Azikiwe Street Lagos,

(otherwise known as P.Z. BUILDING) belongs to the

OBANIKORO CHIEFTAINCY FAMILY OF LAGOS.

b. A declaration that the building lease executed in

respect of No. 108 Nnamdi Azikiwe Street Lagos in

favour of the 1st & 2nd defendants either the 3rd -6th

defendants OR their servant's agent's, privies or

cohort is wrongful, illegal, null & void and of no effect

whatsoever.

c. A declaration that the DEMOLITION (partial or

complete) of the property (i.e. No. 108, NNAMDI

AZIKIWE STREET, LAGOS) by the defendants, their

servants, agents, or privies is wrongful and illegal.

d. An order directed against the defendants for the

payment of One Million Naira (1,000,000.00) being

damages for wilful and unlawful demolition of the

said property situate at NO. 108. Nnamdi Azikiwe

Street, Lagos.

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e. An order of perpetual injunction restraining the

defendants whether by themselves, their servant's

agents or privies from further demolishing

constructing, redeveloping or dealing in any manner

whatsoever with the property situate lying and being

at No. 108 Nnamdi Azikiwe Street, Lagos which

property is also known as P.Z. BUILDING, LAGOS.

At the time the writ of summons was taken, the building

subject matter of litigation was half-way demolished by the

Respondents, the Appellants as Plaintiffs filed series of

applications seeking to restrain the Respondents from the

on-going demolition of the subject matter. After demolition

of the structures, the Respondents commenced and

completed reconstruction, it was at this point, the lower

Court on the 15th day of October 2001 now made an order

that the newly reconstructed structures must not be

occupied, in other words the Respondents must wait for the

Court to determine the suit.

While the order restraining occupation of the newly

reconstructed building was pending, the 4th Respondent in

this appeal brought an application dated 5th February,

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2001, contending that the Plaintiffs had no authority of the

family to institute the action against the Respondents. The

Court below took the application and gave ruling striking

out the suit on the ground that the Plaintiffs had no

authority to bring the action.

This appeal is therefore against the Ruling of the High

Court of Lagos State delivered by Akinsanya J, on the 7th

day of December, 2001 in suit No. LD/3543/2000, striking

out the suit. The Appellants became aggrieved by the

decision and therefore filed amended Notice of appeal

containing four grounds of appeal on the 15th day of March

2018, deemed as properly filed and served on the 23rd day

of March 2018.

Learned Counsel for the Appellants Olusegun Fabunmi filed

the amended Appellant's brief of argument on the 15th day

of March 2018, and Amended Appellants reply on the 12th

day of April 2018.

In the Amended Appellant's brief of argument learned

Counsel on behalf of the Appellants nominated three issues

for determination, the issues are as follows:

1. Whether or not an application challenging the

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authority to sue is the same as challenging the

LOCUS STANDI to institute an action.

II. Whether or not an application challenging

authority to sue is the same as the one challenging

legal capacity to institute an action.

III. Whether or not a member of a family requires

authority to institute an action to protect family

property.

The 1st and 2nd Respondents filed no briefs of argument,

the 3rd, 4th 5th and 5th however filed their amended brief

through learned Counsel H. O. Igbokwe on the 10th day of

April 2018.

The Respondents through learned Counsel identified just

one issue for determination and the issue is also

reproduced as follows:

"Whether the Appellants could bring the action in

suit No. LD/3543/2000 on behalf of the Obanikoro

Chieftaincy family, when the said family is not in

support of the action and did not authorise the

Appellants to institute same".

SUBMISSIONS OF COUNSEL FOR THE APPELLANTS

Submitting on the Appellants first issue for determination,

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learned Counsel referred this Court to page 25-30 of the

records of appeal to submit that the lower Court held the

view that the Appellants had no locus standi to bring the

action against the Respondents. Learned Counsel for the

Appellants submitted that a party's authority to sue is

different from his locus standi. Counsel said lack of locus

standi means the Appellant has no sufficient interest in the

subject matter of litigation. Counsel submitted that

challenge to locus standi is a challenge to legal capacity of

the party to institute legal proceedings in Court, he relied

on the decisions in OWODUNNI Vs. REGISTERED

TRUSTEES OF CELESTIAL CHURCH OF CHRIST

(2000) 10 NWLR (Pt. 675) 315, and the decision in

ADESANYA Vs. PRESIDENT & ANOR (1981) 5 SC 112.

Learned Counsel for the Appellants submitted that where

locus standi is challenged, the contention is that the person

who instituted the action has no interest or sufficient

interest in the matter. Learned Counsel for the Appellants

submitted the applicants/Respondents did not challenge the

locus standi of the Appellants, it was therefore erroneous

on the part of the Court to hold that Appellants had no

locus

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standi, and used the same as basis for striking out the suit.

Counsel for the Appellants contended that the order

striking out the suit is misconceived and therefore urged

this Court to set aside the decision.

On issue number two, learned Counsel for the Appellants

adopted his submissions on issue Number One, and

submitted that the 4th Respondent did not at any point in

his application before the lower Court challenge the legal

capacity of the Appellants to institute the action. Counsel

therefore submitted that issue of lack of legal capacity as a

basis for striking out the Appellants suit was misconceived.

On issue number three, learned Counsel for the Appellants

submitted that the property subject matter of this appeal is

a family property and that the Appellants belong to the

Obanikoro family the owners of the said property. Counsel

referred this Court to the decisions in SOGUNLE Vs.

AKERELE NMLR Pg. 58 at 50, ALHAJI LAMIDI

DAWODU OLOWOSAGO & ORS VS. ALHAJI AMUDA

ADEBANJO (1988) 43 NWLR PT. 88 Pg. 275 at 278,

SUFIANU Vs. ANIMASHAUN (2000) 14 NWLR Pt. 688

at 650, and

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EFFIOM VS. IRONBAR (2000) 3 NWLR (Pt. 650) Page

545, That since Appellants are members of the family, they

require no authorisation to legally maintain an action in

Court to protect their property. Learned Counsel also urged

this Court to note the difference between contract entered

into on behalf of family by family members and the validity

of an action by family members towards protecting family

property. Counsel said the action in this appeal relates to

protection of family property by family members not

contract entered into by family members on behalf of their

family.

Learned Counsel for the Appellants referred to the decision

in SHELL PETROLEUM DEV COMPANY NIGERIA

LIMITED Vs. CHIEF. T. EDAMKUE & ORS. (2009) ALL

FWLR (Pt. 489) 407 at 429, to submit that a person has

the right to protect his family property and can sue for

himself or on behalf of his family in representative capacity.

Again it was submitted on behalf of the Appellants that

once it is shown or expressed on the writ that the action is

brought in a representative capacity only member of that

family or community can challenge the capacity. Counsel

relied on

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the decision in ELF PETROLEUM NIGERIA LIMITED

Vs. DANIEL C. UMAH & ORS (2018) LPELR-43600

(SC).

Learned Counsel for the Appellants therefore submitted

that the action by members of the family to protect family

property with or without authority is valid and

maintainable. He therefore urged that the appeal be

allowed.

SUBMISSIONS OF COUNSEL FOR THE 3rd, 4th, 5th

AND 6TH RESPONDENTS

I earlier on stated that the 1st and 2nd Respondents filed

no briefs of argument. I will therefore consider the

submission of learned Counsel for the 3rd, 4th, 5th and 6th

Respondents. Learned Counsel for the Respondents just

nominated one issue for determination where he said from

the Judgment delivered by the lower Court, two things

came to light, that the Obanikoro Chieftaincy family did not

give the Appellants any authorisation to institute the suit.

That the Obanikoro Chieftaincy family was not in support of

the Appellants and the action commenced by them because

the Head of the Obanikoro Chieftaincy family and the

Principal elders of the family are in a better

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position to know which property is and which one is not

family property.

It was the contention of learned Counsel for the

Respondents that the lower Court found as a fact that the

entire Obanikoro family were together in their objection to

the suit filed by the Appellants. Counsel also contended

that even though the Appellants contended that they

obtained written authorisation from the three branches of

the Obanikoro family, they failed to establish the

authorisation at the trial. Counsel also submitted that the

learned trial Judge found that there is distinction between

external aggression and internal affairs of family, Counsel

said where there is external aggression against family

property from an outsider family members may require no

authorisation to defend the property, but where the

disagreement arises from internal affairs of the family, the

head of the family or the principal members, of the family

are the best to know which property constitutes family

property and which one does not. Counsel said the instant

appeal has to do with internal family affair as opposed to

external affairs, it was clearly stated by the principal

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members of the family that the property subject matter of

litigation does not belong to the Obanikoro chieftaincy

Family, Appellants therefore had no business instituting the

action.

The learned Counsel for the Respondents submitted that

the learned trial Judge was right when he held that

Appellants needed written authorisation from relevant and

competent persons in the family to commence action on

behalf of the family. Counsel for the Respondents said the

learned trial Judge was therefore right in relying on the

decisions in, AKAPO vs. HAKEEM-HABEEB (1992) 6

NWLR (Pt.247) 255 at 293, BALOGUN Vs. BALOGUN

(1935) 2 WACA 290, AGARAN vs. OLUSHI (1907)

INLR 65 in coming to the conclusion that the Appellants

needed the written authorisation of competent persons

within the family to commence the action to protect family

property.

Counsel for the Respondents submitted that from the

materials before the Court, the property subject matter of

litigation 108 Nnamdi Azikiwe Street Lagos belongs to

Ajayi-Bembe family and not Obanikoro Chieftaincy family.

That since the Appellants are not the owners of

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the property, they have no right to file the action, that right

of action only arises where the interest of a person is

adversely affected, he relied on the decisions in ASHEIK

vs. GOVT OF BORNO STATE (1994) 2 NWLR (Pt.326)

Pg.344 at 348, UBA Vs. MICHAEL O. ABIMBOLA & CO

(1995) 9 NWLR (Pt. 419) 371.

Learned Counsel for the Respondents said, the learned trial

Judge was right in striking out the suit on the ground that

the Appellants did not have sufficient interest to sue, the

action is therefore an exercise in futility, he therefore

urged this Court to dismiss the appeal.

APPELLANTS REPLY TO THE 3RD TO 6TH

RESPONDENTS.

In the amended reply to the 3rd- 6th th Respondents brief,

Counsel said the three authorities cited by the Respondents

are not relevant to the subject matter of appeal, Counsel

went further to elaborate on the authorities and finally

submitted that the authorities were cited out of context,

and it would be in appropriate for a party to be given what

i t d id not ask for as done by the learned tr ia l

Judge. Counsel rel ied on the

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decision in ODOFIN Vs. AGU (1992) 3 NWLR 350.

Counsel then submitted that a party must not be awarded

what he does not ask for or pleaded by either party.

Learned Counsel for the Appellants said what the 4th

Respondent as 4th Defendant asked for at the Court below

was that the action be dismissed because the Plaintiffs had

no authority of Dayeri, Kueji, and Kumuyi branches of the

Obanikoro Chieftaincy family to commence the action.

Learned Counsel said the issue of locus standi was not

before the Court, the lower Court was therefore in error to

have raised the issue on its own, he relied on the decisions

in ABBAS Vs SOLOMON (2001) 7 MJSC 149, and NAF

Vs. SHEKETE (2003) 2 MJSC 53.

The Appellants re-argued their appeal again in the

amended reply brief, the amended reply is substantially a

repetition of the submissions of learned Counsel for the

Appellants in their amended brief of argument, this is

obviously not the purpose of a reply brief, a reply brief is

essentially an opportunity for the Appellant to address the

new points raised by the Respondent in his brief of

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argument where the Appellants brief taken as it is cannot

effectively and efficiently tackle the new points, the

Appellants amended reply brief has defeated the purpose of

reply brief, I have however taken some part of the reply, I

am sure it is not necessary to run through the entire reply

as so doing will amount to embarking on another round of

arguments totally unnecessary and uncalled for. Let me

close the reply by stating that Appellants finally urged that

this appeal be allowed, and further urged that the suit be

remitted for trial on the merit before the Court below.

RESOLUTION

The issues for determination crafted by learned Counsel for

the Appellant are seemingly fragmented components of

Respondents sole issue for determination. I am of the view

that the three issues can be effectively collapsed into

Respondents sole issue, let me also state that,

determination of Respondents sole issue for determination

will effectively and effectually resolve the issue in

controversy between the parties in this appeal, it is now

settled that an Appeal Court may reframe issues for

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determination in a bid to address the issues of the parties,

or adopt issues of the parties where so doing would serve

the interest of justice, or/and address the real grievance in

the appeal or effectively resolve the issues in controversy

between the parties see: ABIOLA & SONS BOTTLING

CO. LTD Vs. SEVEN-UP BOTTLING COMPANY (2012)

LPELR-9279 (SC), BIARIKO Vs. EDEH OGWUILE

(2001) 12 NWLR (Pt . 726) 235 at 255 and

OBIUWEUBI Vs. CENTRAL BANK OF NIGERIA (2011)

7 NWLR (Pt.1247) 455.

I am of the view that the issue to resolve in this appeal is

"Whether the Appellants could bring the action in suit No.

LD/3543/2000 on behalf of the Obonikoro Chieftaincy

family, when the said family is not in support of the action

and did not authorise the Appellants to institute same".

The narrow issue is therefore that while the Appellants

contend that it is not necessary to obtain written

authorisation from principal members of the Obanikoro

Chieftaincy family before commencing their action, the

Respondents on the other hand contended that written

authorisation to sue on behalf of the Obanikoro Chieftaincy

family must be obtained by the Plaintiffs/Appellants.

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The Court upon considering the submissions of Counsel

agreed that the Appellants as Plaintiffs needed written

authorisation from the Principal members of the Obanikoro

Chieftaincy family in order to commence valid and

competent action against the Respondents, and since they

had no such authorisation the lower Court found that the

action was incompetent, it was therefore accordingly struck

out. This is therefore the narrow issue to resolve in this

appeal. The Appellants as Plaintiffs at paragraphs 13-14 of

the statement of claim at page 5 of the records of appeal

said the property was leased to the 1st and 2nd Defendants

as developers and building agreement was secretly

executed and hidden from the 3 other Ruling Houses as

represented by the Plaintiffs, but the Ruling Houses clearly

denied giving any authorisation to the Plaintiffs to sue.

The law is well settled that no family member can institute

an action for and on behalf of the family without the

express authorisation of the family. The law is also settled

that any member of the family may defend the action in

respect of family land where the benefit of success goes to

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the entire members of the family. In ALH MOH'D

LAYINKA GALADIMA OF ILORIN & ORS Vs.

ATTORNEY GENERAL OF KWARA STATE & ORS

(2004) LPELR-12626 (CA) this Court per MIKA'ILU (JCA)

(of blessed memory), while dealing with whether a member

of a family can institute a representative action without

authorisation said as follows:

“It is trite that no member of a family can institute an

action for and on behalf of the members of the family

without the consent or authorisation of the family,

but any member can personally defend it family land

though the benefit of his success goes to the entire

members of the family see: AKAPO Vs. HAKEEM-

HABEEB...”

I carefully read the decision in AKAPO Vs. HAKEEM-

HABEEB & ORS (1992) LPELR-325 (SC), the Supreme

Court of Nigeria considered the effect of contracts made by

family head/members of the family on behalf of the family.

In dealing with this issue, KARIBI-WHYTE JSC said as

follows:

"Contracts made by the head of the family are valid.

See BALOGUN Vs. BALOGUN (1935) 2 WACA 290. On

the other hand, no individual member or collection of

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members of the family have legal capacity to enter

into contracts for or on behalf of the family. Such

contracts without the participation of the head of the

family are void: - See AGARAN V. OLUSHI (1907) 1

NLR 66”.

The issue before the lower Court has to do with building

lease of the property 108 Nnamdi Azikiwe Street Lagos

subject matter of litigation which gave rise to this appeal.

Let me state at this stage that the issue at the Court below

has to do with the propriety of the lease executed in

respect of the property which belongs to the Obanikoro

Chieftaincy family. Part of the claim before the lower Court

is again reproduced as follows.

“A declaration that the property situates, lying and

being at No. 108 Nnamdi Azikiwe Street Lagos,

(otherwise known as P.Z. BUILDING) belongs to the

OBANIKORO CHIEFTAINCY FAMILY OF LAGOS.

A declaration that the building lease executed in

respect of No. 108 Nndmdi Azikiwe Street Lagos in

favour of the 1st & 2nd defendants either the 3rd –

6th defendants OR their servant's agent's privies or

cohort is wrongful, illegal, null & void and of no

effect whatsoever".

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The lower Court at page 58 of the records of appeal while

striking out the action filed by the Appellants said as

follows and I quote.

“It is however surprising that while registered

instruments of 19th century and early 20th Century

were exhibited, there is no iota of proof that a formal

mandate was given by the three branches of the

Obanikoro Chieftaincy families represented by these

Plaintiffs to institute this action.

I am aware of the submissions of Counsel for the

Plaintiffs and the authorities cited to the effect that

when it comes to protecting the interest of the family

in property no mandate or authorisation is required

or necessary. It is always a good exercise and practice

to read the body of the case law and reports and not

merely the abridged precis as the ratio decidendi may

be lost through abridgment. Circumstance of this

case where members of the branches of the

Obanikoro Chieftaincy family are fighting over

ownership of a property is quite different when

compared with external aggression.

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Even in the much cited authority of AKAPO V

HAKEEM-HABEEB (1992) 6 NWLR (pt. 247) 266 at

293 where KARIBI-WHYTE said; “The head of the

family can institute actions for and on behalf of the

family.

The expression of the Supreme Court justice about

express mandate seems to me to be a written

authorisation duly signed by those competent to do

so…”.

The central issue considered by the learned trial Judge in

arriving at a decision in this case is just that, the Plaintiffs

Appellants have no right to institute an action on behalf of

the family without express authorisation to do so. The

learned trial Judge took guidance from the decision of the

Supreme Court inAKAPO vs. HAKEEM-HABEEB

(supra). I am fully convinced that the learned trial judge in

the instant case properly applied the law as it is. It is the

law that head of the family can institute actions for and on

behalf of the family and such actions are valid but to the

contrary no individual member or collections of members of

the family have legal right to enter into contracts for or on

behalf of the family, such contracts without the

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participation of the head of the family are void, and no

individual member of the family without express mandate

from the family can commence action in Court for and on

behalf of the family, and where a family member or

members proceed to commence action on behalf of the

family without express authorisation the action shall be

incompetent and therefore liable to be struck out.

The application seeking to dismiss the suit is at page 23 -

25 of the records of appeal, the deponent stated in the

affidavit in support of the motion that he had the authority

of the Obanikoro family to challenge the authority of the

Plaintiffs to bring the action, and that he is also a principal

member of the Deyari branch of the Obanikoro family and

therefore competent to challenge the authority of the

Plaintiffs to bring the representative action. Since the

deponent in the Affidavit in support of the Application

disclosed his status as a member of the family the

Appellants seek to represent, a fact which was neither

denied nor challenged by the Appellants, it suffices to say

that the challenge to the representative capacity of

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the Appellants was in order, rendering the decision in ELF-

PETROLEUM NIG LTD Vs. DANIEL C. UMAH & ORS

(Supra) relied upon by the Appellants inapplicable to the

instant case.

Having failed to dislodge the status of the deponent as a

member of the family which the Appellants purports to

represent, the Appellants cannot be heard to say their

capacity to commence the present action cannot be

challenged by the Respondents; rather, as the fact on

record shows, it is incumbent on the Appellants to show

that they have the express authority of the family to

commence the suit.

In AKAPO Vs. HAKEEM-HABEEB (Supra), the Supreme

Court of Nigeria held as follows and I quote:

“It is well established principle of our law that the

position of the head of family particularly in societies

with recognised chieftaincies with respect to the

control and management of its properties is

dominant. The chief is the head of the family. He is in

charge and control of the family property. He collects

revenue from the family property, and makes

recognised disbursements in respect of

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legitimate expenditure in the interest and for the

purposes of the family.

The head of the family can institute actions for and

on behalf of the family.

Contracts made by the head of the family for and on

behalf of the family are valid: See: Balogun v.

Balogun .... (1935) 2 WACA. 290.

On the other hand, no individual members of the

family have legal capacity to enter into contracts for

and on behalf of the family. Such contracts without

the participation of the head of the family are void.

See: Agaran v. Olushi (1907) 1 NLR 66.

Again, no member of the family without the express

mandate from the family can institute action in Court

for and on behalf of the family. (Underlining mine).

I am in complete agreement with the learned trial Judge

that, since there was no express authorisation for the

Plaintiffs/Appellants to institute the action on behalf of the

Obanikoro Chieftaincy family, the action is incompetent and

therefore deserves to be struck out.

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The sole issue for determination is therefore resolved in

favour of the Respondents against the Appellants, and it

follows therefore that this appeal is devoid of merit and it is

accordingly dismissed, the Ruling delivered by Akinsanya J

on the 7th day of December 2001 in suit No. LD/3543/2000

is affirmed.

Parties shall bear their respective costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely

agree with, and do not desire to add to, the reasoning and

conclusion in the leading judgment of my learned brother,

Tijjani Abubakar, JCA, which I was privileged to read in

draft.

I adopt the reasoning and conclusion as mine and equally

join in dismissing the appeal for being devoid of merit. I

abide by the consequential orders contained in the leading

judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I

had the privilege of reading the draft copy of the judgment

just delivered by my learned brother TIJJANI ABUBAKAR,

JCA and I am in agreement with the succinct

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reasoning and conclusion reached therein. I have nothing

more to add.

I too dismiss the appeal as devoid of merit. The Ruling of

the lower Court is accordingly affirmed. I also abide by the

consequential orders therein.

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Appearances:

O. Fabunmi with him, O. Sarumi Akande ForAppellant(s)

H. O. Igbokwe - for 3rd - 6th Respondents ForRespondent(s)

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