UDOH AKPAN V THE STATE
July 21, 2025MICHEAL AIWORO VS THE STATE
July 21, 2025Legalpedia Citation: (1987-05) Legalpedia 42349 (SC)
In the Supreme Court of Nigeria
Holden At Lagos
Fri May 15, 1987
Suit Number: S.C. 250/1985
CORAM
BELGORE, JUSTICE SUPREME COURT
OPUTA, JUSTICE SUPREME COURT
KAWU, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
NNAMANI, JUSTICE SUPREME COURT
UWAIS, JUSTICE SUPREME COURT
KARIBI-WHYTE,JUSTICE SUPREME COURT
PARTIES
ALHAJI CHIEF YEKINI OTAPO & ORS.
APPELLANTS
CHIEF R. O. SUNMONU & ORS
RESPONDENTS
AREA(S) OF LAW
RIGHT TO FAIR HEARING
SUMMARY OF FACTS
The matter in respect of which the plaintiff filed an action in the High Court is a chieftaincy matter. But, the main complaint of the appellant was that the Court of Appeal denied the represented parties a hearing in the appeal after Alhaji Chief Yekini Otapo who represented the appellant and others had declined to contest the appeal filed by the defendants against the decision of the High Court. The appellant further appealed to the Supreme Court on the matter.
HELD
The appeal was allowed and the decision of the Court of Appeal was set aside.
ISSUES
1. That the learned justices of the Court of Appeal erred in law in unilaterally amending the title of the suit to reflect only Alhaji Chief Yekini Otapo as respondent.
2. The learned Justices of the Court of Appeal erred in law when they proceeded to hear the appeal on the 21st October, 1985 and to have ordered that the need to file briefs be dispensed with.
3.The learned Justices of the Court of Appeal erred in law in failing to give the appellant any hearing at the hearing of the appeal.
RATIONES DECIDENDI
THE FAILURE TO OBTAIN LEAVE TO SUE IN A REPRESENTATIVE CAPACITY
“It is settled law that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action. The mere fact that the court holds that the plaintiff has held himself out as representing others cannot and does not amount to the court making a person to represent other people.” Per OBASEKI, J.S.C.
WHEN AN ORDER FOR LEAVE IS NOT SPECIFICALLY SOUGHT
“Even if an order for leave is not specifically sought, it will be presumed that leave to sue in that capacity was given if the title and the statement of claim reflects that capacity and the suit was prosecuted in that capacity to judgment and judgment was given for or against the plaintiff in that capacity.” Per OBASEKI, J.S.C.
A REPRESENTATIVE PLAINTIFF IS THE SOLE PLAINTIFF AND IS DOMINAS LITIS UNTIL JUDGMENT
“A representative plaintiff is the sole plaintiff and is dominas litis until judgment. He can discontinue, compromise, submit to dismissal and other things as he decides during the course of the proceedings.” Per OBASEKI, J.S.C.
A DENIAL OF A RIGHT OF HEARING IN THE APPEAL IS A DENIAL OF THE CONSTITUTIONAL RIGHT OF FAIR HEARING
“A denial of a right of hearing in the appeal is a denial of the constitutional right of fair hearing enshrined in section 33(1) of the Constitution of the Federal Republic of Nigeria 1979. It is also a breach of the rules of natural justice.” Per OBASEKI, J.S.C.
THE TEST OF FAIRNESS IN APPEAL PROCEEDINGS DIFFER FROM THE TEST OF FAIRNESS IN PROCEEDINGS AT THE COURT OF FIRST INSTANCE
“The test of fairness in appeal proceedings must of necessity differ from the test of fairness in proceedings at the Court of first instance.” Per OBASEKI, J.S.C.
THE ABSENCE OF FAIR HEARING
“The absence of fair hearing or rather the denial of fair hearing to the appellant and the other represented parties is fatal to the judgment of the Court of Appeal. It is a breach of the audi alteram partem principle of the rules of natural justice.” Per OBASEKI, J.S.C.
CASES CITED
Moon v. Atherton (1972) 2 O.B. 435; (1972) 3 W.L.R. 57; (1972) 2 All E.R. 145 C.A
Leathly v MacAndrew (1876) W.N. 38
Handford v. Storie 2 S & S 196. Re Alpha Co. (1903) 1 Ch.203; Re Calgary etc. Co. (1908) 2 Ch. 652, C.A.
STATUTES REFERRED TO
Not Available
