EZEKIEL ISAIAH & ANOR V. EMMANUEL ASSOR & ANOR
(2011)LCN/4353(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2011
CA/PH/329/2007
RATIO
NOTICE OF APPEAL: EFFECT OF ANY DEFECT IN THE NOTICE OF APPEAL
A notice of appeal is the foundation of the appeal. Any defect in the notice of appeal renders the whole appeal incompetent. See A.G. FEDERATION V. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT. 619) 187. PER T. O. AWOTOYE, J.C.A
STATUTORY PROVISION: PROVISIONS OF ORDER 6 RULE 2 (1) OF THE COURT OF APPEAL RULES 2007 AS WELL AS ORDER 3 RULE 2(1) OF THE COURT OF APPEAL RULES 2002 AS IT RELATES TO THE CONTENTS OF THE NOTICE OF APPEAL
Order 6 Rule 2 (1) of the Court of Appeal Rules 2007 as well as Order 3 Rule 2(1) of the Court of Appeal Rules 2002 stipulates that the notice of appeal shall contain the names and addresses of all parties directly affected by the appeal. This is a mandatory requirement of the Rules. PER T. O. AWOTOYE, J.C.A
REPRESENTATIVE CAPACITY: POSITION OF THE COURT ON WHO THE PLAINTIFFS ARE IN AN ACTION BROUGHT IN REPRESENTATIVE CAPACITY
In LADEJOBI V. OGUNTAYO (2005) 7 WRN 22 at 41, the Supreme Court explained who the plaintiffs are in an action brought in representative capacity. UWAIFO JSC stated in delivering the lead judgment of the court thus:- “It is right to say that when a action has been instituted by representatives of a family or a ruling house either in land matter or chieftaincy matters as appropriate, and facts are pleaded and reliefs are claimed indicating, that it is in respect of the representative or corporate interest in the subject matter then the real plaintiff or plaintiffs should be seen as the family or ruling house and not the individuals who have sued in a representative capacity such individuals appear on record as suing for the class or family or ruling house (as in this case) of which they are members. There should, therefore not by any confusion as to who is the entity suing. See OTAPO V. SUNMONO (1987) 2 NWLR (PT. 58) 587.” PER T. O. AWOTOYE, J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
(OFR) Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. EZEKIEL ISAIAH
2. KENNETH OGBU Appellant(s)
AND
1. EMMANUEL ASSOR
2. FESTUS EYIDIA
(for themselves and as representing The Obiti family in Umudioga Town Ikwerre LGA of Rivers State). Respondent(s)
T. O. AWOTOYE, J.C.A (Delivering the Leading Judgment): This is the judgment in respect of appeal against the judgment of High Court Rivers State sitting at Isiokpo delivered on 26/10/2005. At the trial court suit No. AHC/22/82 and suit No. IHC/56/90 were consolidated by order of court. The plaintiffs in suit No AHC/22/82 were made the plaintiffs in the consolidated suit and the defendants now the appellants became the defendant. The plaintiffs in the consolidated suit AHC/22/82 and IHC/56/90 were (1) EMMANUEL ASSOR and (2) DAVID OMAH (for themselves and as representatives of OBITI family in Umudioga Town in Ikwerre district of the Rivers State of Nigeria). See the judgment on page 41 of Record of Appeal.
Pleadings were exchanged, hearing commenced and judgment was later given in favour of the plaintiff on 26/10/2005.
The defendants being aggrieved by the judgment of the trial filed a Notice of Appeal making EMMANUEL ASSOR AND FESTUS EYIDIA the respondents. The appellants also listed the persons directly affected by the appeal as-
(i) Emmanuel Assor
(ii) Festus Eyidia
(iii) Akpelu Osodua
Obiti family was excluded.
The Respondents in this appeal, in their Respondents brief raised a preliminary objection submitted that the appeal is incompetent on the ground that the Respondents instituted the action at the lower court in a representative capacity and not in their respective personal capacity.
The appellants surprisingly in their reply to Respondents brief were silent on the preliminary objection which I shall first determine. See U.B.A. PLC V. ACB (NIG.) LTD (2005) 12 NWLR (pt. 939) 232, ABIOLA V. OLAWOYE (2006) 13 NWLR (PT. 996) 1.
A perusal of the record of appeal as well as the Notice of Appeal reveals that the names of the parties as per the record differ from the names on the Notice of Appeal filed by the appellants filed on 23/11/2005.
A notice of appeal is the foundation of the appeal. Any defect in the notice of appeal renders the whole appeal incompetent. See A.G. FEDERATION V. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT. 619) 187.
Order 6 Rule 2 (1) of the Court of Appeal Rules 2007 as well as Order 3 Rule 2(1) of the Court of Appeal Rules 2002 stipulates that the notice of appeal shall contain the names and addresses of all parties directly affected by the appeal. This is a mandatory requirement of the Rules. The Respondents in this appeal who were the plaintiffs at the lower court are OBITI family.
In LADEJOBI V. OGUNTAYO (2005) 7 WRN 22 at 41, the Supreme Court explained who the plaintiffs are in an action brought in representative capacity.
UWAIFO JSC stated in delivering the lead judgment of the court thus:-
“It is right to say that when a action has been instituted by representatives of a family or a ruling house either in land matter or chieftaincy matters as appropriate, and facts are pleaded and reliefs are claimed indicating, that it is in respect of the representative or corporate interest in the subject matter then the real plaintiff or plaintiffs should be seen as the family or ruling house and not the individuals who have sued in a representative capacity such individuals appear on record as suing for the class or family or ruling house (as in this case) of which they are members. There should, therefore not by any confusion as to who is the entity suing. See OTAPO V. SUNMONO (1987) 2 NWLR (PT. 58) 587.”
If follows from the above that the appellants have failed to list the names and addresses of all the parties directly affected by the appeal as required by the Rules and have filed an appeal against a non-party or at best an interested party as opposed to the plaintiffs who got judgment in the lower court.
This defect goes to the root of this appeal. See OWAZURIKE V. A.G. FEDERATION (2007) 8 NWLR (PT. 1035) 1 and renders this appeal incompetent.
There is no need going into the main appeal. See ANPP v. RETURNING OFFICER, ABIA SOUTH SENATORIAL DISTRICT (2005) 6 NWLR (Pt. 940) 140; A.G. FEDERATION V. ANPP (2003) 18 NWLR (PT. 851) 182.
This appeal is incompetent. It is accordingly struck out. I award N50,000.00 cost in favour of the Respondents.
M. DATTIJO MUHAMMAD, J.C.A(OFR): My learned brother Awotoye JCA, obliged me the le.ad judgment he wrote in this matter. On perusal, I agree with his reasonings and conclusion that this appeal has merit and that it should be allowed.
I adopt the lead judgment as mine and allow, the appeal by virtue of the reasoning’s articulated therein. I state purely for the sake of emphasis that an Appeal is a continuation of the consideration of the issues raised at the lower court and by the same parties. The instant appeal purports to have persons who neither commenced nor defended the suit at the lower court as respondents. No explanation is offered by the Appellants as to how and why these persons are made party to the appeal when they never were at the lower court. I am unable to find either the order of the court below or this court granting leave to the Appellants to substitute the defendants on record for the purported Respondents in the extant appeal.
By the rules of this court, to wit order 6 rule 2(1), it is mandatory for Appellant’s notice of Appeal to contain the names and addresses of all the parties to be affected by the appeal. This is a fundamental requirement and any defect in relation to it goes to the competence of the appeal. The Respondent’s preliminary objection raises this jurisdictional issue and it cannot be glossed over. See A.G., Federation v. Guardian Newspaper, Ltd. (1999) 9 NWLR (Pt. 618) 18, A.G. Lagos State v. Dosunmu (1989) 3 NWLR (P.111) 552 and Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) 623. The preliminary objection has merit and for this and the fuller reasons in the lead judgment I uphold the objection and strike out the appeal for its incompetence. See Madukolu v. Nkemdilim (1962) 1 ALL NLR 587 and Sken Consult v. Ukey (1981) 1 SCC. I also abide by the consequential orders contained in the lead judgment.
EJEMBI EKO, J.C.A: I had the privilege of reading in advance the judgment just delivered in this appeal by my learned brother, T.O. AWOTOYE, JCA. I agree that this appeal, vide the notice of appeal filed on 23rd November, 2005 at pages 57 and 58 of the Record of appeal, is incompetent.
The judgment appealed has at page 41 of the Record, as the parties, in the suits nos AHC/22/82 and IHC/56/90 the following persons –
BETWEEN:
1. EMMANUEL ASSO
2. DAVID OMAH
(For themselves and as representing the Obiti Family) (in Umudioga Town in Ikwerre District of Rivers State)
AND
1. EZEKIEL ISAIAH
2. KENNETH OGBU
3. AKPELU ASSOR ODUA
In respect of the suit no AHC/22/82 the parties thereto from processes at pages 2, 3, 4, 7 and 11 of the Record, are:
BETWEEN:
1. ESSOR WOSU
2. DAVID OMAH
(For themselves and as representing the Obiti Family in Umudioga Town in Ikwerre District of the Rivers State).
AND
1. ISAIAH NWAKPA
2. OGBU IBEKWE
The Notice of Appeal, at page 57 of the Record, has as parties in the appeal –
BETWEEN:
1. EMMANUEL ASSOR
2. FESTUS EYIDA
AND
1. EZEKIEL ISAIAH
2. KENNETH OGBU
3. AKPELU ASSOR ODU
Essor Wosu (as one of the plaintiffs) and Isaiah Nwakpa and Ogbu Ibekwe (as Defendants) have disappeared from, or are not reflected on, the Notice of Appeal. On the other hand, FESTUS EYIDAH, whose name did not appear in any of the processes at the trial court, is now on the Notice of Appear as one of the Respondents. The question is-
How come?
Parties are not at liberty, without leave of court, to unilaterally add or substitute a new party to any existing party. They must obtain leave of court for that purpose. That is the essence of Order 15, Rule 2 of the Court of Appeal Rules, 2007.
I do not think that the provisions of Order 6 Rule 2 (1) of the Court of Appeal Rules which enjoins the Appellant to state “the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal” are met by an Appellant introducing names of strangers to the proceedings on appeal either as appellants or respondents, and/or the Appellant unilaterally adding to or substituting the existing names of parties to the proceedings appealed.
Order 6, Rule 6 of the Court of Appeal Rules empowers us to strike out a notice of appeal when the appeal is not competent or for any other sufficient reason. This appeal being incompetent, the notice by which it was originated is hereby struck out.
Appearances
Appellant absentFor Appellant
AND
O. D. Abdulkareem Esq.
Akabuogu P.E.For Respondent
