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Adisa v. Attorney-General, Kwara State

ABDULRAHAMAN ADISA & ORS

V

ATTORNEY-GENERAL, KWARA STATE & ORS

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA A. OKUNOLA, JCA (Presided and Read the Lead Judgment)

PATRICK IBE AMAIZU, JCA

WALTER S. N. ONNOGHEN, JCA

CA/IL/101/99

WEDNESDAY, I8TH OCTOBER, 2001

APPEAL - Grounds of appeal - When not covered by an issue for determination - Effect

ACTION - Representative action - Representative capacity - Complaint against failure of plaintiff to endorse writ as to representative capacity -  Whether goes to the competency of the suit  - Order 11 rule  7(1) Kwara State High Court Rules

APPEAL - Grounds of appeal - Particulars of error thereof - Purpose of

COURT - Relief not claimed by parties -Lack of power to grant

COURT - Technicalities in adjudication process - Need for court to shun

PRACTICE AND PROCEDURE  - Capacity of parties - Endorsement thereof on a writ of summons - Where irregular - Duty of court to amend or correct suo motu

PRACTICE AND PROCEDURE - Representative capacity - Complaint against failure of plaintiff to endorse writ as to representative capacity -  Whether goes to the competency of the suit  - Order 11 rule  7(1) Kwara State High Court Rules

PRACTICE AND PROCEDURE - Rules of court - Non-compliance there with  - Whether fatal as to invalidate the suit or a mere irregularity -  How non-compliance treated

PRACTICE AND PROCEDURE - Rules of Court - Purpose of in the administration of justice

PRACTICE AND PROCEDURE - Technicalities in adjudication process -

Need for court to shun

Issues:

1.            Whether the failure of the plaintiffs/appellants to endorse on their writ their representative capacity renders the suit incompetent, null and void.

2.            Whether the learned trial Judge was right in holding that the action was badly constituted and therefore null and void in view of the application before him or

Whether the trial Judge was right in granting a relief not claimed.

Facts:

This appeal is against the interlocutory ruling delivered by Ibiwoye, J. of the Ilorin High Court on 22/9/97 where he set aside its earlier ruling of 19 /7/93 with the consequence of reversing his order allowing the plaintiffs/ respondents commence the action at the lower court in a representative capacity.

The Federal government had through the Kwara State government acquired a particular land at Jebba for the use of the Defence Industries Corporation. The Federal government subsequently paid to the Kwara State government for onward transmission to the occupiers of the land, a huge compensation for economic trees thereon.

When the 3rd defendant/respondent rose to claim  ownership of the land and demanded to be paid all the compensation, twenty farmers who also claimed to be the owners of the land approached the court and sued the defendants/respondents to prevent the 1st and 2nd respondents from paying the 3rd respondent. They gave authority to five of them to sue in a representative capacity. This was done but the capacity in which they were suing was not endorsed on the writ of summons. However, leave to sue had been obtained in favour of the five respresentatives

Hearing in the suit commenced and the plaintiffs gave evidence and closed their case. Before the date fixed for defence, the learned state counsel filed a motion on 5/6/97 on behalf of the 1st and 2nd defendants/respondents praying that the ruling of 19/7/93 containing the representative order be set aside.

On 22/9/97, four years after the order was made, the court set aside

the ruling and held that the failure of the plaintiffs to endorse the representative capacity in which the appellants (as plaintiffs) were suing on the writ and other processes and the failure of the appellants to serve the defendants with the representative order was fatal to the case. The court further held that the suit was badly constituted.

Dissatisfied, the plaintiffs/appellants appealed to the Court of Appeal.