CaseLaw
Otapo V. Sunmonu (1987) CLR 5(h) (SC)
Judgement delivered on May 15th 1987
Brief
Facts
On the 7th of January 1982, Alhaji Chief Yekini Otapo sued nine Defendants including the Attorney-General of Lagos State. Later on the Governor of Lagos State was made a party. Alhaji Otapo sued for himself and on behalf of members of Isale Oja and Gbogunleri Quarters of Ogunji Adebari Otapo and Asunmoge Olu Chieftaincy families of Agege. The Claims of the Plaintiff in the Court of first instances included two declarations, one injunction and a prayer for "An order that a panel be set up to make a new Declaration. "After due trial, Jinadu J. on the 29th day of July, 1983, declared and ordered as follows respectively:-
The Plaintiff, Alhaji Otapo and members of his Chieftaincy Families of Agege won in Lagos High Court. The Defendants lost.
Dissatisfied and aggrieved by the judgment of the learned trial judge, Jinadu J., all the Defendants appealed to the Court of Appeal Lagos Division. At p.381 of the record of proceedings the Principal Registrar certified that Notice of Appeal had been "duly served upon the Plaintiffs/Respondents" and that the Defendants/Appellants "have duly and punctually complied with the conditions of Appeal imposed upon them." Normally the next step would have been service of the record compiled on the parties. Thereafter the parties would then file their Briefs of Argument and the appeal would then proceed to hearing. But this was not to be a nominal case, On the 3rd of September 1985 (p.382 of the record) Mr. Oduneye, Director of Legal Services, Lagos State and Solicitor for 7th to 10th Appellants filed a motion for leave to argue additional grounds of appeal. This motion came up for hearing before the Court of Appeal on the 3rd day of October 1985. Mr. Oduneye appeared for 7th to 10th Appellants/Applicants. Mr. Ogunade appeared for the 1st to 6th Defendants/Applicants. There was no appearance for the Plaintiffs/Respondents. There was nothing to show whether or not the Plaintiffs/Respondents or their counsel were/was served with the motion of the 7th to 10th Defendants. Mr. Oduneye and Mr. Ogunade were present in Court on the 19th May 1982 when Mr. Olufemi Ajayi was allowed to withdraw from the case (see p.127 of the record). It was after this formal withdrawal that the Chambers of Chief Gani Fawehinmi took over the conduct of the Plaintiffs case. Messrs Oduneye and Ogundare were fully aware of this change of counsel by the Plaintiffs. Having been discharged from the case Mr, Olufemi Ajayi should not again be served with any process.
The disturbing feature of this case is what happened on the 21st day of October 1985 before the Court of Appeal (p.398 of the record of proceedings). Mr. J.A. Oduneye was recorded as appearing with Mr. Gbadebo and Femi Ajayi for Appellants. Mr. B.a. Ogundare was recorded as appearing with Miss Martins "for 1st-6th Respondents" and O.A.R. Ogunde was recorded as appearing with C.C. Ibeh for Plaintiff/Respondent. Then came this record:-
"Mr. Otapo in person: says he is no longer interested in the appeal as person directly affected."
Before Mr. Oduneye moved his motion to argue additional grounds, Mr. Ogunde for the Plaintiff/Respondent was not asked if he opposed the motion. When the motion was moved he was not asked to reply to any submission on the motion made by the 7th to 10th Defendants/Applications. As though this was not enough Mr. Oduneye then proceeded to argue his appeal. Mr. Ogunade for the 1st to 6th Defendants associated himself with the submissions made by Mr. Oduneye. Mr. Ogunde for the Plaintiffs/Respondents was not recorded as being called upon to reply to the oral arguments of Defendants/Appellants as no Briefs were filed by either side. The appeal was heard without Briefs. Judgment was not reserved. It was quickly written there and then and delivered there and then. The result was that the appeal was heard and judgment delivered without as much as the Court below calling on counsel for the Plaintiffs/Respondents to reply or otherwise address the Court. It is this failure of the Court below to call upon or hear the Plaintiffs/Respondents or their counsel that they, as the present Appellants, complained of in Ground 6 of their grounds of appeal as constituting a "denial of a hearing to the Appellants" contrary to Section 33(1) of the 1979 Constitution.
This Court then wanted to know whether p.398 of the record referred to earlier on, represented what actually happened on the 21st October 1985 before the Court of Appeal? In answer Mr. Oduneye the Lagos State Solicitor-General conceded that page 398 substantially represents what happened that day." He continued "I know that there was a discussion between the Court and Alhaji Otapo. Otapo said he was no longer interested in the appeal. Then the other Plaintiffs stood up but the Court told them that they were not parties to the original action in the High Court. The people who stood up were members of the Plaintiffs' Family."
The Question for Determination in Ground 6 above is - whether the statement made in the Court of Appeal by Alhaji Otapo on 21st October, 1985 namely that "he is no longer interested in the appeal" justified the denial of a hearing to the other members of the Chieftaincy families of Agege whom Alhaji Otapo purported to represent and who indicated that they were still interested in the appeal?
Issues
The main complaint of the appellant was that the Court of Appeal denied the...