PROF. POLICARP ANYANWU v. PRINCE SABINUS AHAM OPARAOCHA & ORS
(2019)LCN/12724(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of February, 2019
CA/OW/115/2018
RATIO
APPEAL: WHERE A STRANGER DISPLACES A STRANGER ON APPEAL
“Again see a recent decision of this Court in Agbaje vs. INEC & Ors. (2015) 10 SC 42, and the Supreme Court decision in PPA. V. INEC (2012) 13 NWLR (Pt. 1317) 215 at 237, where the apex Court ruled that where a stranger displaces a party on appeal by usurping his position in a proceeding at the trial Court, the appeal will be rendered as incompetent and consequently rob the appellate Court of the jurisdiction to hear same. Also in the case of Shinning Star Nig. Ltd. v. ASK Steel Nig. Ltd. (2011) 4 NWLR (Part 1238) 596, the initial Notice of Appeal filed by the Appellant in this Court was against four Respondents. The Appellant on a motion filed unilaterally, reduced the number of Respondents to three.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
PROF. POLICARP ANYANWU
(for himself and as representing Avuvu Town Union and Avuvu Autonomous Community) Appellant(s)
AND
1. PRINCE SABINUS AHAM OPARAOCHA
2. PRINCE ANDREW UGWUEZUMBA OPARAOCHA
(for themselves and as representing members
of Eze Oparaocha Ruling House of Avuvu)
3. IKEDURU LOCAL GOVERNMENT
4. MR. KYRIAN OSUJI NJOKU
(for himself and as representing Avuvu Town Union and Avuvu Autonomous Community)
5. THE ATTORNEY GENERAL OF IMO STATE
6. IMO STATE GOVERNMENT
7. MR. FRANCIS MEZU ANUKWU Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment):
The civil proceeding that generated this appeal was commenced by the 1st and 2nd Respondents (for themselves and as representing Avuvu Autonomous Community) against the 3rd Respondent as the 2nd Defendant, the Appellant as the 3rd Defendant and one Eze Leonard C. Onyenanuas the 1st Defendant (for themselves and as representing Avuvu Town Union and Avuvu Autonomous Community and in which they claimed the following reliefs:
(a) An order of declaration that the Defendants are in breach of Section 5(4) supra by non-observanceof the procedure stipulated therein.
(b) An order of declaration that the Defendants arein breach of Avuvu custom by exercising Avuvu custom in secrecy from time to time, in such a way that aspirants and participants in such customsor change of it and subsequent introduction of new Avuvu customs, are not aware of such customsfrom their planning, discussion andimplementation stages.
(c) An order of injunction restraining the Defendants their agents, personal representatives, any person or persons acting for them or by their authority from using their powers and positions derived from their wrong interpretation of the said procedure to exclude or neglect the 1st Plaintiff, 2nd Plaintiff and other members of Eze Oparaocha Ruling House, in matersor affairs, with reference to Avuvu custom or tradition, especially denying them access to information on matters and exercise of rights in connection with Avuvu custom or tradition, customary events and time table of customary events being decided by the Defendants from time to time, pending the determination of this action.
During the pendency of the proceeding, the original 1st Defendant, Eze Leonard C. Onyeanu passed away as a result of which his name was struck off the suit on 21/1/2011. Then on the 9th February, 2018, a Motion on Notice was filed by the Plaintiffs which omitted the name of the Appellant and inserted a new name as the 2nd Defendant, i.e. ?Mr. Kyrian Osuji Njoku. The said Motion sought for an order joining Mr. Francis Mezu Anukwu, and, an order joining the Attorney General/Commissioner for Justice of Imo State and Imo State Government as Defendants in the suit.
It was buttressed by the facts averred in a 14 paragraph affidavit deposed to by the 1st Claimant, Prince Sabinus Aham Oparaocha on the ground that despite an order made by the lower Court on 9/5/2013 affirming the continued validity of the Order made in suit No. HOW/531/2012 attached as Exhibit B tothe Motion, the Imo State Government recognised Mr. Francis Mezu Anukwu as the Eze of Avuvu Autonomous Community and gave him Staff of Office. The said Motion was moved before the lower Court on the 13th February, 2018. At that instance, learned Counsel for the Defendants, F. N. Okoh, Esq., informed the Court that he was not served and, then indicated their interest to challenge the Motion for Joinder. The Court then informed Counsel that the proof of service of the said Motion was filed on 12/2/2018 and proceeded to grant the Motion as prayed, thereby joining the Attorney General of Imo State, Imo State Government and Mr. Francis Mezu Anukwu as the 4th, 5th and 6th Defendants in the suit. The original 3rd Defendant who, ordinarily should have been the 2nd Defendant after the striking out of the demised original 1st Defendant, and whose name did not appear or was deliberately omitted or excluded by the Plaintiffs from the Motion filed on 9/2/2018 and granted on 13/2/2018, was piqued by the said Order made on 13/2/2018, that he filed a Notice of Appeal on the 26th February, 2018 which he founded on three grounds of appeal, i.e. he was not served with the Motion paper, the Motion was incompetent by the distortions in the names of the parties and inclusion of the name of a person who was never a party to the suit, and the exclusion of his (Appellant?s) name from the Motion, and then denial of fair hearing to him.
He sought for setting aside of the Order of Joinder made on 13/2/2018 and striking out the said Motion for Joinder filed on 9/2/2018. On 9/3/2018, the record of appeal was transmitted from the lower Court to this Court. The Appellant filed his Brief of Argument on 26/3/2018. However, in the course of writing this judgment and leafing through the processes in the case file, this Court stumbled on one affidavit filed by the 1st Respondent in this appeal on 19/11/2018, about two days to the hearing of the appeal, alleging that he was never served with the Notice of Appeal, the Appellant’s Brief of Argument nor any hearing notice in the appeal. He however acknowledged that the documents relating to the appeal were deposited with some of his relations in Umude in Avuvu Town of Imo State.
He attached a Notice of Discontinuance of the Action against the Appellant herein which was filed on 10/8/2018 on the ground that the Appellant is no longer the President General of Avuvu Town Union. He asserted he would wish to be served through his Counsel, Chief EnechiOnyia, S.A.N. This apparently explained why the 1st-3rd Respondents did not file any Brief of Argument. The 4th and 7th Respondents filed their Brief indicating their non-opposition to the appeal as they were unable to support the decision of the Court below;
The records of this Court showed that the 1st and 2nd Respondents were served with the Appellant?s Brief of Argument on the 29th March, 2018 respectively. The 1st Respondent was also personally served with the Notice of Appeal on the 6th March, 2018 at Umude, Avuvu, Ikeduru Local Government Area as per the record of appeal herein. The Assistant Chief Registrar of the lower Court who compiled and transmitted the record certified at the last page of the record of appeal that the Notice of Appeal in the case had been duly served upon the parties.
The 1st Respondent had a specified number of days within which he ought to have filed his 1st Respondent’s Brief of Argument but he chose to be docile. He was also served with hearing notice on the 13th November, 2018 intimating him of the date of 21st November, 2018 the appeal had been fixed for hearing. He was in attendance on that day and submitted a letter dated the 20th November, 2018 from the Chambers of Enechionyia & Associates after the Appellant’s Counsel and the 4th and 7th Respondents? Counsel had argued the appeal. As a result the letter for an adjournment was not countenanced.
In the Appellant’s Brief of Argument, three issues were propounded for determination herein and they read:
(1) Whether the 1st and 2nd Respondents? Motion on Notice for joinder in the Court below was competent.
(2) Whether the Appellant was given a fair hearing by the Court below.
(3) Whether the Court below was competent to hear the Motion on Notice for joinder dated the 5th day of February, 2018 and filed on the 9th day of February, 2018.
Even though the 4th and 7th Respondents seemingly filed the Brief of Argument, they are not opposed to this appeal.
It was submitted on behalf of the Appellant under issue No.1 which questions the competency of the 1st and 2nd Respondents’ Motion on Notice for Joinder in the Court below, that the law is the character of any case at its inception remains sacrosanct except altered with the leave of the Court. It is only the leave of the Court can effect any alteration of the parties in case of transfer, transmission of interest or any other form of alteration of the parties to the proceedings. He referred to the Supreme Court decisions in the cases of PPA. V. INEC (2012) 13 NWLR (Pt. 1317) 215 at 237, per Ngwuta, J.S.C.,and Apeh vs. P.D.P (2016) All FWLR Part 824 page 1 at 16, that if any party is displaced and a stranger to the proceedings at the trial Court has usurped his place the appeal will be incompetent and the appellate Court will lack the jurisdiction to hear it.
This applies equally to an application for leave to appeal. The apex Court stated that in the application before it, the Petitioners before the Tribunal, Chief Sam Nkiru and Peoples Progressive Alliance (PPA) were cast aside as it were and an impostor had taken their place parading as applicant. Learned Counsel, A. I. Nwachukwu, Esq., further drew the attention of this Court to the Amended Writ of Summons and other processes filed in the Court belowand stated that with the striking out of the name of the Late Eze Leonard C. Onyeanu as the 1st Defendant, the position of the Appellant would move to the second, he will be the 2nd Defendant and he also remained a party to the suit. He further argued that by the record of appeal, the 4th Respondent, Mr. Kyrian Osuji, was never at anytime joined as a party to the suit and there was no application for his joinder as a party to the suit. Curiously, in the Motion for joinder filed on 9/2/2018 in the Court below, the name of the Appellant was not reflected as a party to the suit and no leave of the Court was obtained in that respect. He then contended that the said Motion is incompetent and urged this Court the issue in favour of the Appellant.
On the second issue, learned Counsel reproduced the provisions of Section 36 of Constitution of the Federal Republic of Nigeria, 1999 and submitted that the right to fair hearing is not only a constitutional issue but also a principle of common law as well as customary law. He further relied on Bill Construction Co. Ltd vs. Imani& Sons Ltd. (2007) CHR 28 at 35 paragraphs A-F; Okoroike vs. Igbokwe (2001) 14 NWLR Part 688 at 505 paragraph D; Bellview Airlines Ltd. vs. Aluminium City Ltd. (2008) All FWLR Part 434 page 1617; Enwere vs. Commissioner of Police (1993) 6 NWLR Part 299 at 341; Order 39 Rule 1(3) and (4) of the High Court of Imo State (Civil Procedure)Rules, 2017; the cases of Nigeria Teaching Hospital Management Board vs. Nnoli (1994) 8 NWLR Part 376 at 419; Onochie vs. Odogwu (2006) All FWLR Part 317 page 544 at 569-570, and submitted that it is mandatory to serve the Motion for Joinder within five days of filing the same and for the Appellant who had indicated his eagerness to oppose the Motion to file his written address and counter-affidavit within seven days of being served with the Motion on Notice.
It was contended that the Motion was not served on the Appellant either within the 5 days provided by the Rules of the lower Court or at anytime thereafter. It was only the 3rd, 5th and 6th Respondents that were served with the Motion on Notice.
Learned Counsel then stated that the Appellant was not given the opportunity to present his opposition before the lower Court and persuaded this Court to resolve this issue in favour of the Appellant.
With regard to issue No. 3, it was contended that the second and third conditions listed in the Supreme Court case of Madukolu vs. Nkemdilim (1962) 1 NLR 587 at 595 were not met before the lower Court heard and granted the said Motion. He further referenced the cases ofApeh vs. PDP (supra); Sken Consult Nig. Ltd vs. Ukay (1981) 1 SC 6; Estate of Late Chief Humphrey I. S. idisi vs. Ecodril (Nig.) Ltd (2016) All FWLR Part 850 page 1016 at 1038, per Nweze, J.S.C., that the trial Court?s judgment against the 1st and 2nd Respondents without service was a judgment given without jurisdiction and is therefore null and void. Learned Counsel submitted that all parties to a proceeding are entitled to be served all Court processes and failure to serve the same on any party entitled to be served vitiates the entire proceeding conducted thereunder no matter how well conducted. He therefore, urged this Court to resolve the issue in favour of the Appellant.
As I indicated earlier, the 4th and 7th Respondents are not opposed to this appeal. The rest Respondents were served with the Notice of Appeal, the record of appeal and the Appellant?s Brief of Argument but they failed to respond nor challenge this appeal.
After a careful consideration of the issues raised by the Appellant and the legal authorities cited by him, this Court is of the conviction that there is merit in this appeal as there is no iota of proof in the processes transmitted to this Court by the Registrar of the Court below that the suit was discontinued against the Appellant, the actual 2nd Defendant, after the striking out of the name of the deceased original 1st Defendant. There was also no proof as to when the present 4th Respondent was joined as a party to the suit. If as alleged by the Appellant that there were no orders of the Court striking out the name of the Appellant from the suit and joining the 4th Respondent as a Defendant to the suit, it follows, as rightly contended by the Appellant, that the names of the parties were distorted without the leave of the lower Court.
The Supreme Court had cautioned in innumerable cases that all processes and other documents whatsoever prepared in pursuance of a suit or an appellate jurisdiction of the Court for filing in accordance with the provisions of the Rules, shall reflect the same title as that which obtained in the Court of trial. In other words, a proper application must necessarily, reflect the title of the case as it were in the proceeding leading to the appeal and the application. If an unnamed party wants his name reflected as a party, he must bring a miscellaneous application in the existing proceedings and duly serve on all the parties.
In Apeh vs. P.D.P (2016) All FWLR Part 824 page 1 at 16, relied upon by the Appellant’s Counsel, the Supreme Court thoroughly admonished the Applicants before it by observing thus: ‘The proper thing to do was to have left the parties on record intact notwithstanding the decision of the trial Court, and state the name as in the instant case for substitution of name of the interested party and identify him as the applicant, which was not done. Rather, the applicants usurped the prerogative of the Supreme Court, that is, without the leave of the Supreme Court, they imposed themselves as parties, effectively altering the case which the named plaintiffs initiated at the trial Court and defended at the Court of Appeal.’
Galadima, J.S.C., expressed thus: ‘It is discernible from the record of appeal that the present applicants have completely changed the character and names of the parties as they were portrayed at the trial Court and the Court below too, without seeking and obtaining leave of the Court’.
They have no power so to do. The character or identity of a suit should always remain the same right from the inception of the suit and also must be maintained throughout the duration or pendency of the case unless, leave was sought and obtained from the Court, appellate or otherwise, to change it.
Again see a recent decision of this Court in Agbaje vs. INEC & Ors. (2015) 10 SC 42, and the Supreme Court decision in PPA. V. INEC (2012) 13 NWLR (Pt. 1317) 215 at 237, where the apex Court ruled that where a stranger displaces a party on appeal by usurping his position in a proceeding at the trial Court, the appeal will be rendered as incompetent and consequently rob the appellate Court of the jurisdiction to hear same. Also in the case of Shinning Star Nig. Ltd. v. ASK Steel Nig. Ltd. (2011) 4 NWLR (Part 1238) 596, the initial Notice of Appeal filed by the Appellant in this Court was against four Respondents. The Appellant on a motion filed unilaterally, reduced the number of Respondents to three.
This Court upheld a preliminary objection raised against the reduction and ruled the application as incompetent and dismissed the same. The appeal filed by the 1st Cross Respondent whereby it made the 4th Cross Respondent, (its co-petitioner at the trial Tribunal) a Respondent to its appeal, is nothing short of an abuse of Court process. The consequential effect is an outright dismissal of the appeal so filed at the lower Court. See Arubo vs. Aiyeleru and Onyeabuchi vs. INEC (supra).
It is clear in the light of the Supreme decisions that the name of the Appellant, a party to the suit should not have been excluded or omitted from the Motion for Joinder filed by the 1st and 2nd Respondents on the 9th February, 2018. Likewise, the name of the 4th Respondent ought not to have been joined or included in the process without the leave of the Court or a clear order of the lower Court joining him thereto. The 1st and 2nd Respondents have no right whatsoever to include the name of the 4th Respondent in the said process filed on 9/2/2018. It is definitely not an irregularity that can be corrected by an amendment of the Motion. It is a fundamental defect to have included his name in the first instance without the leave of the Court. What all these portray is that, no valid Motion on Notice was filed on the 9th February, 2018 before the Court below because it is void ab initio.
The application on its own is incurably defective having contained or reflected the name of an unknown party to the suit who was never a party to the suit at the lower Court without the leave of the lower Court, and omitting the name of the Appellant, a party to the suit. The issue of service of the process would have been considered had there been a valid document before the lower Court on the 13th February, 2018 to have been heard and granted. Accordingly, the three issues presented herein are hereby resolved in favour of the Appellant. Consequently, this appeal is allowed and the ruling of the lower Court delivered on the 13th February, 2018 will be and is hereby set aside. The said Motion on Notice dated 5/2/2018 and filed on 9/2/2018 is hereby struck out for being incompetent in the face of omission of the name of the Appellant in the sad Motion, inclusion of the name of a non-party to the suit therein and denial of the Appellant the opportunity to be heard therein. There will be no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my Brother THERESA NGOLIKA ORJI-ABADUA JCA.
I agree with her reasoning and conclusion. I allow the appeal.
The decision of the High Court of Imo State sitting at IHO in Suit No. HM/172/2008 delivered on the 13th of February 2018 is hereby set aside.
I abide by the consequential order made as to costs, that there shall be no order as to costs.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my Lord, Theresa N. Orji-Abadua JCA, in the lead judgment, that the appeal is meritorious.
I too allow it and abide by the consequential orders in the lead judgment.
Appearances:
A. I. Nwachukwu, Esq.For Appellant(s)
F. N. Okorie, Esq. for 4th and 7th Respondents.
There is no legal representation for other Respondents.For Respondent(s)
