ODIO & ANOR v. ODIO
(2021)LCN/15507(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, March 17, 2021
CA/AS/98/2013
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. DAVID ODIO 2. MERCY ODIO APPELANT(S)
And
ESE ODIO (For Himself And As Representative Of Late Samuel O. Odio’s Children) RESPONDENT(S)
RATIO
WHETHER OR NOT NON-PARTIES TO A SUIT CAN APPEAL AS OF RIGHT
Not being parties, they cannot also appeal as of right as they have incompetently purportedly sought to do, herein.
The hearsay and inadmissible affidavit founding the Birth certificates so much talked about, and all communications relating thereto, said to be “without prejudice” and “inadmissible as being made in the cause of or in anticipation of legal proceedings” will not only be of no value to the Respondents alone. Indeed the entirety of that evidence will be of no value to either of the parties; both sides may not derive any benefit thereunder. PER DANJUMA, J.C.A.
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of Honourable Justice M. Umokoro, J. as he then was (Now Chief Judge of Delta State) of the High Court of Justice, Delta State on motion filed on 18th July, 2012 for joinder of Applicants/Appellant third parties.
By the decision delivered on the 8th day of November, 2012 was dismissed.
The Appellants as parties seeking to be joined at the lower Court had by their application of 18th July, 2012 sought to be joined in Suit No. W/251/2012 between Mr. Ese Odio for himself and as representative of late Samuel O. Odio’s children v. Beatrice Odio and Ors. The 1st respondent is the mother of the Appellants/Applicants/Parties seeking to be joined at the lower Court as the 3rd and 4th Defendants in the substantive suit. The Application was dismissed holding that they were not necessary parties in the suit.
ISSUES FOR DETERMINATION
1. Whether in the circumstances of this case, the learned trial judge of the lower Court was right in holding that the parties seeking to be joined as the 3rd and 4th Defendants/Appellants are not necessary parties.
2. Whether the learned trial judge can determine substantive matter by merely considering interlocutory affidavit, especially based on an attached document marked “without prejudice” made during the pendency of the action.
The Respondent by its brief of Argument filed on 26th June, 2020 had raised a point of preliminary objection to the appeal. It is instructive that the preliminary objection had been raised by Notice of objection dated 5th September, 2014 and filed on 8th October, 2014.
The said Notice of preliminary objection states as follows:
NOTICE OF PRELIMINARY OBJECTION: BROUGHT PURSUANT TO SECTION 24(2)(A) OF THE COURT (SIC)
The said preliminary objection have been partially raised as to whether the parties seeking to be joined, now were Appellants necessary parties. This is per issue one for determination as contained in the Respondent’s Brief of Argument.
The Appellants contends that the parties seeking to be joined were people with interest in the subject matter as children of the late Samson Odio and any order that the Court would make will affect their interest. Referring to the cases of PANALPINA WORLD TRANSPORT NIGERIA LTD. V. J. B. OLANDEEN INTERNATIONAL & ORS. (2011) ALL FWLR PT. 564, Page 22 Rationes 1 and 2 it was contended that the Respondents were not the only children of the late Samson Odio as the Appellants/Applicants seeking to be joined were also the children of the late Samson O. Odio. That the Appellants/Applicants for joinder were not giving the opportunity for joinder and the right to defend their interest as children of the deceased Samuel. That this was contrary to their right of fair hearing vide S. 36(1) of the 1999 Constitution. VICTINO FIXED ODDS LIMITED VS. JOSEPH OJO & 2 ORS. (2010) ALL FWLR PT. 524 PAGES 27-28 relied upon.
It is contended that the issue to be determined will affect the rights and interest of the Appellant in their entitlement to the property of the deceased as the issue at the trial Court was the issue of the devolution of the properties of late Samuel Odio among all his children. That their paternity was acknowledged and they bore the surnames of the deceased and were so known from birth and therefore ought have been joined as necessary parties.
That this issue be resolved in favour of the Appellant.
The Respondent, herein had filed a Notice of Preliminary Objection to the instant appeal in the following terms.
NOTICE OF PRELIMINARY OBJECTION:
(A) That the purported Notice and Grounds of Appeal of the Appellants filed on the 30th day of November, 2012 against the Ruling of 8/11/2012 was filed outside the mandatory 14 days stipulated in Section 24(2) (a) of the Court of Appeal Act 2010 thus rendering the Notice of Appeal incompetent.
(B) The Appellants not being parties to the motion before the lower Court can only exercise a right of appeal as persons “having an interest in the matter” with the leave of the lower Court or this Honourable Court Section 243(A) of the Constitution of the Federal Republic of Nigeria 1999 as Amended.
(C) In A and B above leave of the lower Court or this Honourable Court is a condition precedent to the exercise of the right failure to obtain which renders the purported appeal incompetent.
It is dated 22nd June, 2020 and filed on 26th June, 2020.
Arguing the said objection in limine in his Respondents
Brief of Argument it was observed that the Appellants herein were neither parties in the substantive suit nor were they applicants in the motion that culminated in this appeal.
Secondly, that the Ruling of the lower Court refusing joinder of the Appellants at the instance of the 1st Defendant was interlocutory in nature and did not determine the suit between the parties on the merit.
Thirdly that the purported Notice and Grounds of Appeal was filed on the 30th day of November, 2012, days (8 days) outside the time stipulated by law for appealing against an interlocutory decision which is fourteen days.
Fourthly, that the Appellants failed to obtain the leave of this Court or that of the trial Court to appeal against the Ruling as an interested party.
The trial Court had found that the application for joinder, which was refused or dismissed, was at the instance of the 1st Defendant. That Defendant had not appealed it was a subsisting finding of fact and decision that remained binding until set aside therefore.
Parties to that Ruling, have not appealed against it. The Appellants herein can only appeal against that decision (being strangers to the decision) by first becoming parties to the suit; and this can only be if they, apply for leave to join as interested parties; and if leave is granted; then having been granted leave may apply for extension of time to seek leave to appeal and then leave to appeal.
It is upon the satisfaction of this trio conditions that they may apply for extension of time to appeal time having expired for any party to appeal the Interlocutory Ruling.
The Respondent’s counsel is therefore right in arguing that the Appellant’s who have fallen foul of Section 24(2)(A) of the Court of Appeal Act by not lodging their Notice of Appeal within 14 days and only after obtaining (and not before) obtaining the necessary leave could not have lodged a competent Appeal.
That the Notice of Appeal lodged on 30th November, 2012, twenty two days after the Ruling renders the appeal incompetent is correct. The Respondent’s counsel is right in his insistence that the right of appeal conferred by that Section i.e. 24(2) (A) Court of Appeal Act, can only be by leave of Court, as the Appellants were not parties in the suit. This is as clearly provided by the Section 243(A) of the constitution of the Federal Republic of Nigeria, 1999.
The absence of leave rendered the appeal incompetent. See AGIP NIG. LTD. VS AGIP PETROL INTERNATIONAL & ORS. (2010) ALL FWLR (PT. 2010) P. 1198; F.G.N. V. ZEBRA ENERGY LTD. (2003) 105 LRCN 363 AT 367 Ratio 5. The appeal herein has not come to this Court by due process of law. It is incompetent and this Court is without jurisdiction. It should be struck out.
The preliminary objection herein succeeds and the Appeal and its Notice thereof are declared incompetent and non-existent. The appeal was lame and had not even limped. It is struck out.
On the merit of the appeal, the Respondent had argued that the trial Court was right in refusing to join as the 3rd and 4th defendants, the Appellants herein.
The Respondents, relying on Order 13 Rules 3 of the High Court (Civil Procedure) Rules of Delta State 2009, had submitted that a person may be made a defendant being a person against whom a right or claim to relief is alleged to exist. The writ of summons and statement of claim of the 1st and 2nd Respondents do not assert any claim to relief against the Appellants herein who were not and have not been shown to be in possession of the estate of the late Mr. Samuel O. Odio. They had not been shown to have any tangible interest on title that was linked to the property, such that their non joinder would operate against the fair and just determination of the suit. If it were a suit by the children of the deceased, they could apply as interested parties following the law to join or take out separate action. Can the Court not effectively determine the case as constituted by the claimant, widow of the late Samuel O. Odio as representative of the named children without the joinder of the Appellants herein?
The obvious answer is that the Court can determine the suit effectively and with finality, without the Appellants. Appellants, if interested, are at liberty to institute their own action pursuant to and in accordance with the law and its procedures to have whatever interests they may be entitled to, vindicated, in law.
The learned counsel for the Respondent had also argued that, granted that the Appellants could apply for joinder as Defendants, that it is indeed an application founded upon the hearsay affidavit deposition of learned counsel for the Applicants, Pius O. Uguru, Esq.
I have read the Affidavit deposition and agree that it is a stark “hearsay” as the reasons for learned counsel’s belief in the information are not stated; neither are there adumbrations as to specific time and events stated.
Chris Aghoja, Esq. for the Respondent is not wrong in submitting that the decision of the trial Court was right as it was founded aptly on the issues presented before it. The action by the claimants was a representative suit for claimants and on behalf of the children of the late Samuel O. Odio. The Defendants, if they are the deceased Samuel O. Odio’s children as asserted, are within the class which the claimants are representing and the claimants claim no reliefs against them (the children). The trial Court properly did not accede to the motion to join them as defendants.
I agree with the learned counsel for the Respondent that it was uncharitable to have imputed to the trial Court a finding that the Birth certificates were forged when it did not say so.
Saying merely that the certificates required further clarification was an apt and fitting observation made by the trial Court on the certificates; this Court having read the letter from the Respondent’s solicitor, Chris Aghoja, Esq. to the Medical Director of the Hospital that purportedly issued the Birth Certificates and his Replies thereto in reference to those documents (certificate). The argument appertaining the letter as having been marked “without prejudice” does not flatten in any way the apt comment of the learned trial Judge (which in any case was not the reason for his decision) as the document so marked was not made by any of the parties nor made in the course of negotiation for a settlement of a dispute out of Court.
This issue is resolved against the appellant.
On his issue 2, the Appellant had querried “whether the learned trial judge can determine substantive matter by merely considering interlocutory affidavit especially based on an attached document marked “without prejudice” made during the pendency of an action.
The Appellant’s counsel made heavy weather of the issue 2 and submitted that the trial Court erred in law in determining controversial issue of the birth of the Appellants/Applicants/parties seeking to be joined by a consideration of the affidavit without evidence.
AGWU VS JULIUS BERGER (NIG.) PLC. (2012) ALL FWLR (PT. 653) 1855.
Relying also on UMORU V. ORIRE (2011) ALL FWLR (PT. 581) 1504-1505 it was argued that the documents on the Birth Certificates were made by the Respondents during the pendency of a suit by a person(s) interested and the communications were made at the pendency of suits or when anticipated. That the documents were inadmissible.
Without ado, I see the Appellants’ issue 2 as begging the question already settled that the application by his counsel was incompetent, they, not being original parties as Defendants, can only be, by leave to be joined as Defendants within the constitutional and statutory period of 14 days.
Not being parties, they cannot also appeal as of right as they have incompetently purportedly sought to do, herein.
The hearsay and inadmissible affidavit founding the Birth certificates so much talked about, and all communications relating thereto, said to be “without prejudice” and “inadmissible as being made in the cause of or in anticipation of legal proceedings” will not only be of no value to the Respondents alone. Indeed the entirety of that evidence will be of no value to either of the parties; both sides may not derive any benefit thereunder.
That being the situation and more so that the trial Court did not rely on the evidence on the medical Report or Birth Certificate solely to ground its decision, I find no injustice occasioned by any reference to the Birth Certificates and the hearsay evidence of the Appellant’s counsel.
For the aforesaid, I resolve the Appellants’ issue 2 against them and in favour of the Respondent.
For the avoidance of doubt, the Appellants’ prayers for (1) An order of this Court setting aside the Ruling of the lower Court delivered on the 8th November, 2012 dismissing the Motion on Notice of the 3rd and 4th Defendants as parties seeking to be joined in Suit No. W/251/2012 Mr. Ese Odio (for himself and as representative of late Samuel Odio’s children) vs. Mrs. Beatrice E. Odio & Ors. Dated 18th July, 2012 and filed same date. (2) An order of this Honourable Court joining David Odio and Mercy Odio as necessary parties in Suit No. W/251/2012 are both refused.
The appeal fails and is dismissed.
In consequence, the Ruling of 8th November, 2012 in which M. Umokoro, J (as he then was) now Chief Judge withheld his discretion pursuant to Order 13 Rule 8(2) of the Delta State High Court (Civil Procedure) Rules 2009 to join as the 3rd and 4th Defendants, the Applicants/Appellants herein; and thus dismissing their application, is affirmed.
Accordingly, there shall be an accelerated hearing of the substantive suit that has been stalled and delayed by this interlocutory appeal, for over 8 years now!
The Appellants have the undoubted right to institute any action against whoever they may have a claim against and in respect of that right. This, they may do without stultifying a pending litigation wherein they have not shown their legal basis for joinder as herein. This is an appropriate case for indemnity in costs. I award a cost of N300, 000 against the Appellants and in favour of the Respondents herein.
JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA, which has just been delivered. I agree with the reasoning and conclusion that this appeal is incompetent. I also agree that in respect of the merit of the appeal, that the appeal is devoid of merit and liable to be dismissed. I also dismiss the same and abide by the consequential orders made in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA, and I am entirely in agreement with him on the reasoning and conclusion reached. The Appeal fails and is hereby dismissed.
Appearances:
Pius O. Uguru, Esq. For Appellant(s)
Chris Aghoja, Esq. For Respondent(s)
