➥ CASE SUMMARY OF:
Alhaji Ibrahim Taiwo Ajomagberin & Ors. v. Alhaji Raheem Salau & Ors (2018) – CA
by PipAr Chima
Court of Appeal – CA/L/256/2002
➥ JUDGEMENT DELIVERED ON:
On Friday, the 29th day of June, 2018
➥ AREA(S) OF LAW
Family member to institute action;
➥ NOTABLE DICTA
⦿ CANNOT INSTITUTE ACTION WITHOUT AUTHORISATION OF FAMILY
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 the entire members of the family. – Tijjani Abubakar, JCA.
Alhaji Ibrahim Taiwo Ajomagberin & Ors.
Alhaji Raheem Salau & Ors.
➥ LEAD JUDGEMENT DELIVERED BY:
Tijjani Abubakar, J.C.A.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
H. O. Igbokwe
➥ CASE HISTORY
At the time the writ of summons was taken, the building subject matter of litigation was half-way demolished by the Respondents/Defendants, 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, 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.
➥ ISSUE(S) & RESOLUTION
I. 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?
A. 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 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.
B. 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.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ CANNOT INSTITUTE ACTION WITHOUT FAMILY AUTHORISATION
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.
⦿ ONLY CONTRACTS BY HEAD OF FAMILY ARE VALID
AKAPO Vs. HAKEEM-HABEEB & ORS (1992) LPELR-325 (SC): 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 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.
➥ REFERENCED (OTHERS)