IBHE & ORS. vs. ORU & ORS.(2022)LCN/16817(CA)
ISSUE: REPRESENTATIVE ACTION-Whether members of a family can validly initiate a suit as representatives of the family to protect family interest in a property in the absence of authority from the head and principal members of the family; Whether capacity to bring a representative action to protect a family interest in a property can be extended to capacity to divest interest in the family property(Issue is mine)
PRINCIPLE:
“…the crux of the complaint here is that the learned trial Judge erred when he held that the suit before the Court was properly brought even in the face of the evidence before the Court that the Respondents are not the head and principal members of the Emebuma Family. While giving the reason for his conclusion on this issue, the learned trial Judge held at pages 140 to 142 of the record of appeal, held as follows:
“… A cursory look at the Statement of Claim shows that the Claimants are members of the Emembuma Family, and this much has been admitted by the Defendants in their Affidavit in Support of the objection. It is equally clear (and the Defendants have admitted) that the declarations sought concerning the subject matter of the suit (the disputed parcels of land) are in favour of the said family. The law is trite (and the Defendants have not disputed it) that every member of a family has the locus to sue to protect the family’s interest in a family property… However, if he has not the authority of the family to bring the action, the family will not be bound by the result, unless for some reason, the family is estopped from denying that the decision was binding… Thus, a member of a family requires the consent/authority of the family, or where he does not have, he need the ratification by the family, for the result of an action instituted as representing the family to be binding on that family. On the other hand, the head of family can take out an action to protect family property or defend an action in respect of family property, even without the prior authority of other members of the family and the result shall be binding on the family…”
My noble Lords, from the above excerpt, it is evident that the learned trial Judge was on a proper standing and correctly stated the position of the law in connection with the extant issue. As the learned trial Judge subsequently noted in his ruling, the dispute between the parties does not border on the right of the Respondents to sue to protect the Emebuma Family’s interest in the disputed lands; and also not that, as members of the Emebuma Family, the Respondents do not have the authority to sue, the Appellants’ complaint as enumerated in one of the grounds of the preliminary objection is that since the Respondents are not head and principal members of the Emebuma Family, they lacked the capacity, in the absence of authority from the family or the head and principal members, to initiate this suit as representatives of the family.
Indeed, the law is that a person has the right to protect his family interest in or title to and can sue for himself and on behalf of the family in a representative capacity. See SOGUNLE Vs. AKERELE (1967) NMLR 58; NTA Vs. ANIGBO (1972) 5 SC 156; MELIFONWU Vs. EGBUJI (1982) 9 SC 145; ATANDA Vs. OLANREWAJU (1988) 4 NWLR (Pt. 89) 394. In this case, the Respondents as claimants have exercised the right to protect their family interest in the disputed lands, by bring the action leading to the present appeal. There must be proof of substantial opposition in order to deprive them of their representative capacity. The Respondents’ right to bring the suit against Appellants as members of the Emebuma Family to defend and protect what they claim as Family land cannot be questioned. That point has long been settled in SOGUNLE Vs. AKERELE (supra) and religiously followed by a long line of cases to the effect that not just principal members of a family or community but every member of a family/community has proprietary interest in family/community land and so under a duty to protect it and consequently a standing to institute action in respect of any wrong or threat to such property. According to ONYEAMA, JSC, in SOGUNLE Vs. AKERELE (supra) p. 60: “(t)here is authority for the view that a member of a family may take steps to protect family property or his interest in it, if he has not the authority of the family to bring the action the family would, of course, not be bound by the result, unless for some reason the family was estopped from denying that the action was binding.”
In the present case, the Respondents are claiming that the disputed lands belonged to their family – the Emebuma family, it would be odd if, even as a result of a misunderstanding or unsettled issues between the Respondents and the Appellants (even if accepted that they are members of the same family) that the respondents could not protect family rights in the family land because the Respondents are not head and principal members of family.
The statement of law handed down by the Supreme Court in LAYINKA Vs. GEGELE (1993) 3 NWLR (Pt. 283) 518 at 530, to the effect that capacity to bring a representative action to protect family or communal interest should not be equated with capacity to divest interest in family or communal property. His Lordship, KARIBI-WHYTE, JSC, stated the principle thus: “I think the proposition that the validity of sale of land on behalf of the family can only be by the head of the family and the principal members, or voidable only by the principal members alone. See Ekpendu v. Erika (1959) SCNLR 186 cannot be extended to the challenge of actions against the interest of the family. See Sogunle v. Akerele (1967) NMLR 58. …. Every member of the family has an interest in family property and is under a duty to protect such property. There is therefore a locus standi to institute an action in respect of wrong done to such a property.”
Similar reasoning was expressed by the apex Court in SAPO Vs. SUNMONU [2010] ALL FWLR (Pt. 531) 1408) 1425, where OGBUAGU, JSC, held that: “A head of family can take action to protect family property or defend an action in respect of family property, even without the prior authority of other members of the family. So also any member of the family may take steps to protect family property or his own interest in it.” (Emphasis mine). The trial Judge was therefore under a duty to entertain and decide on the merits late Owolabi’s action to defend his community land and enter judgment at least in his personal capacity. That is where the submission of Mr. Oji that the rules of Court on representation are not rigid becomes relevant.”
Meanwhile, it is instructive that, in support of their contention that the Respondents are not the head and principal members of the Emebuma Family and therefore lacks the capacity to bring the action in a representative capacity, the Appellants relied on Exhibits CLP1 to CLP5. Exhibits CLP1 to CLP4, which include minutes of meetings and elections of the head and principal members of the Emebuma Family; Report of elections; Administered Oath of Office as well as letter of introduction/presentation; are documents purportedly showing the processes leading to the election and appointment of the said head and principal members from July, 2015 and September, 2015. It is from this process that one Alhaji Kashim Oru purportedly emerged as the head of the Emebuma Family, as touted by the Appellants. On the other hand, Exhibit CLP5 is the writ of summons in connection with the suit commenced at the instance of the Respondents herein, seeking inter alia an order of Court declaring that the Respondents “constitute the leadership of Emebuma Family”. The said suit was commenced and constituted in Suit No. OHC/2014 on 10th September, 2014. What this shows is that not only was the purported election/selection/appointment of the head and principal members of the Emebuma Family being touted by the Appellants, done during the pendency of a suit touching on the subject of the proper person(s) to act in that capacity; it is also obvious that the said Alhaji Kashim Oru was sued by the Respondents as 4th Defendant in Suit No. OHC/20/2014 and cannot therefore feign ignorance of the pendency of the said action.
It is indeed disheartening that the Appellants are touting the appointment of some persons as head and principal members of the Emebuma Family done ostensibly without due regard to the fact that a dispute in connection with that subject is before a Court of law, and in apparent defiance of the authority, justice, and dignity of the Court. Of course, I do not see any justifiable reason for which the trial Court would have countenanced the said Exhibits in considering the issue at hand. As a matter of fact, the learned trial Judge was on the right judicial footing when he held that the issue as to who the head and principal members of the Emebuma Family was, is in dispute between the Respondents and Alhaji Kashim Oru in Suit No. OHC/20/2014.
In a nutshell, I am unable to accept the arguments canvassed by the Appellants on this issue, as well founded; they are in my view, misconceived. The decision of the learned trial Judge on this issue in my respectful view, reflects the correct position of the law, and I think that its incumbent on the Appellants to cue behind the reasoning and conclusion therein. In the circumstances, this issue is resolved against the Appellants.” Per KOLAWOLE, JCA.
Courtesy: Lawrence Udo Edet, Esq.
(Providing legal principles & solutions)
19-1-2024