OLUBODE V. AYOTIDE GLOBAL INVESTMENT LTD (2017)

Background

This appeal arose from a ruling of the Osun State High Court, Ede Judicial Division, which struck out the appellant’s action for want of capacity and locus standi. Mr. Sheriff Memudu Olubode had commenced proceedings in respect of intestate family land belonging to the estate of his late father, Memudu Akanmu Olubode. He sued for himself and purported to represent other children of the deceased, excluding Mrs. Sakirat Akinsola. The dispute concerned family property which had not been partitioned into separate parcels or allotments.

The respondents applied for an order striking out the suit, contending that the appellant lacked authority to represent the other members of the family. Although affidavit evidence disclosed that at least one family member, Akeem Memudu Olubode, had authorised the appellant to sue on his behalf, the trial court concluded that this was insufficient because the appellant had not obtained the authority of every other child of the deceased. The suit was consequently struck out. The appellant appealed to the Court of Appeal.

Issues

1. Whether the appellant had the capacity and locus standi to commence and maintain the action personally as a member of the family and in a representative capacity.
2. Whether the absence of authority from some of the persons represented rendered the representative action incompetent.
3. Whether the trial court was entitled to strike out the entire suit instead of removing the names of persons who did not authorise the action or allowing the action to proceed in the appellant’s personal capacity.
4. Whether the respondents’ formulation of an issue for determination was competent where it was based on the appellant’s grounds of appeal.

Ratio Decidendi

The Court of Appeal held that a member of a family has sufficient legal interest to sue personally to protect or defend family property, and does not require the consent of every member of the family before doing so. Where the property remains undivided and part of an intestate family estate, one member may institute proceedings to protect the common interest.

The court further held that the failure to obtain authority from some persons named or described as represented parties does not automatically invalidate the action. If the representative capacity is established by the pleadings and evidence, the case may proceed. At most, the names of persons who did not authorise the action may be struck out, or the title of the suit may be amended. The existence of a valid personal claimant is sufficient to prevent the entire action from being rendered incompetent.

A representative action does not fail merely because some represented persons later deny authorisation or fall out with the named plaintiff. The named plaintiff remains dominus litis until judgment at first instance and may conduct, discontinue or compromise the proceedings. Where necessary, the court may add or substitute a represented person as a party.

Court Findings

The appellate court found that the appellant had a direct and substantial connection with the disputed property as a child of the deceased and member of the family. He was therefore competent to sue in his own personal capacity. In addition, the counter-affidavit of Akeem Memudu Olubode supported the appellant’s assertion that he had authority from at least one other family member. The respondents had not shown that the property had been partitioned or that the objecting family members possessed separate titles or letters of administration excluding the appellant from protecting the estate.

The court also relied on the respondents’ pleadings, which recognised the appellant’s substantial role in the transaction concerning the property. Those pleadings indicated that he had acted on behalf of the family, collected or disbursed relevant funds, and supervised repairs and renovation works. These facts reinforced his sufficient interest and capacity to sue.

On the procedural objection, the court held that a preliminary objection to the competence of an appeal or its grounds should ordinarily be raised by motion on notice, followed by argument in the respondent’s brief. The objection directed at the respondent’s own brief was irregular. In any event, a respondent may adopt the appellant’s issues or formulate separate issues, provided that the issues are tied to the grounds of appeal. The respondent’s issue in this case was sufficiently connected to the grounds.

The trial court was also criticised for disregarding applicable decisions of the Supreme Court and Court of Appeal. The Court of Appeal emphasised that lower courts are bound by relevant appellate precedent and must not defeat a competent claim through technical objections. Substantial justice, rather than procedural formalism, should guide the determination of disputes.

Conclusion

The appeal was allowed. The ruling of the Osun State High Court dated 17 December 2015, striking out Suit No. HED/16/2014, was set aside. The suit was restored to the cause list and ordered to be reassigned to a different judge for accelerated hearing. The court awarded costs of N30,000 in favour of the appellant against the respondents.

Significance

This decision confirms the liberal approach of Nigerian courts to representative actions involving undivided family property. A claimant’s personal right to protect family property is not extinguished merely because other family members refuse to authorise the proceedings. Defects in representative capacity are generally curable and should not result in the destruction of an otherwise competent action. The judgment also reinforces the judicial duty to prefer substantial justice over technicality and confirms that procedural irregularities should not be used to impose unnecessary costs, delay or limitation risks on litigants.