JOHN NWAFOR EZEAKILE v. MAUREEN EZEAKILE
(2019)LCN/13908(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of May, 2019
CA/L/857/2017
RATIO
APPEAL: WHETHER AN APPEAL IS A CONTINUATION OF THE TRIAL
It has been a well established principle of adjudication based on the Rules of this Court, that an appeal is for all intents and purposes, a continuation of the suit determined and concluded before the lower Court, the basis upon which an Appellant seeks for an appellate Court?s review. See the Unreported decision of this Court in T. M. LEWIN (NIG) LIMITED Vs. SMARTMARK LIMITED in Appeal No. CA/L/832/2015. Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 clearly provides that ?all appeals shall be by way of rehearing. Therefore, for the purpose of an appeal, a party must conduct his case in accordance with the character and nature of the suit being appealed against.
PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
APPEAL: WHETHER THE UNILATERAL ALTERATION OF PARTIES IN A SUIT CAN RENDER A NOTICE OF APPEAL INCOMPETENT
The unilateral alteration of the parties in the suit, as pleaded at the Court below, by the appellant as reflected on the notice of appeal renders the notice of appeal incompetent. With these parties improperly altered, on the notice of appeal, the said notice of appeal is liable to be struck out and it is hereby struck out?.?
Similarly, in a recent decision delivered on Friday, February 2, 2018 in CENTRAL BANK OF NIGERIA Vs. LINAS INTERNATION LIMITED & ORS (2018) LPELR ? 44819 (CA) this Court, per IGEH, JCA, at pages 20 to 23, paras B ? E, held thus:
“It is now trite law that an Appellant or a party seeking to appeal as an interested party cannot rearrange or reconstitute the parties to an action as constituted in the lower Court at Appellate Court.
PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
APPEAL: WHEN THE NATURE OF A CASE CAN BE ALTERED ON APPEAL
With respect, the character of any case at its inception, remains so sacrosanct that only leave of Court can authorise any alteration in the case of transfer or transmission of interest, or any other form of alteration of the parties to the proceedings. See BESSOY LIMITED Vs. OLEKA & ANOR (2018) LPELR 44202 (CA). PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
Before Their Lordships
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
JOHN NWAFOR EZEAKILE Appellant(s)
AND
MAUREEN EZEAKILE Respondent(s)
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment):The Respondent as Claimant at the lower Court, commenced an action vide Writ of Summons and Statement of Claim with the following reliefs endorsed thereon:
a. ?A Declaration that the sale or purported sale of the family properties with particulars listed above without the consent of the claimant is fraudulent, illegal and voidable in law.
b. An Order of the Honourable Court setting aside the sale or purported sale of the properties sold to whosoever while same were grossly subjudiced before a competent Court of law.
ALTERNATIVELY:
c. An Order of the Honourable Court vesting ownership of the properties at No. 2 & 2B Fatai Doherty Close and at Iru OwelleA Onitsha in the Claimant.
d. The sum of Ten Million Naira payable to the Claimant being unearned salaries and unpaid profit due to her as a Director/Shareholder in Joe Frank Industry Limited since 1999 till date.
e. An Order of injunction restraining the Defendants from further sale of any properties or attempt to carry out any Act towards the selling of other properties pending the determination of the suit.
f. An Order of this Court granting substantial general damages against the 1st and 2nd Defendant in favour of the Claimant for the emotional torture, mental trauma and physical and psychological injuries caused the Claimant by the inhuman act of the Defendants.?
Upon service of the Originating Processes on him, the Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Court to hear and determine the Claimant?s suit as presently constituted against the Appellant as 1st Defendant. Parties filed and exchanged the relevant processes upon which the objection was heard and in a considered Ruling delivered on February 22, 2017, the learned trial judge, Honourable Justice R. I. B. Adebiyi of the High Court of Lagos State, siting at the Ikeja Judicial Division, dismissed the said objection.
Dissatisfied with the said Ruling, the Appellant filed a Notice of Appeal dated February 28, 2017, and in accordance with the Rules of this Court, briefs of Argument were filed and exchanged by both parties. The Appellant filed a brief of Argument as well as a ?Reply Brief?. The Appellants Brief of Argument is dated August 2, 2017 and filed August 23, 2017 but deemed April 11, 2018. Two issues for determination were formulated thus:
1. ?Whether the plea of Res judicata raised by the Appellant is applicable in this matter in view of the previous decisions of the Courts on this matter namely the judgment of Justice Marsh dated 20th January, 2000 and ruling of Justice Nwaka made on 20th June, 2016?
2. Whether the memorandum of understanding executed by the parties on 12th October, 1988 is binding on the parties irrespective of the fact that same was not enrolled as a judgment of the Court
In the Respondent?s Brief dated May 12, 2018 and filed on June 8, 2018, two issues were similarly formulated for determination as follows:
1. ?Whether the latter suit of the Respondent at the lower Court in ID/2622GCMW/16 before Hon. Justice R.I.B. Adebiyi contained issues already concluded and determined in previous suits before Hon. Justice L.G.A. Marsh and Justice Nwaka in WD/24/99 and ID/88WD/2013 respectively to bar the Respondent from invoking the jurisdictional power of the Court to adjudicate thereon on ground of res judicata?
2. Whether a memorandum of understanding allegedly executed between the parties, (execution of which was denied) and upon which no pronouncement was made by the Court can constitute an issue estoppel against the Respondent
Meanwhile, Respondent filed a Notice of Preliminary Objection dated May 12, 2018 challenging the competence of the appeal (and jurisdiction of this Court) on the ground that the appeal before the Court is different from the suit in the lower Court in Suit No. ID/2622GCMW/2016 in that the parties before the lower Court are not the same with the parties in this Appeal in CA/857/2017.
Generally, the primary purpose of a preliminary objection is to arrest and terminate the hearing on the merit of the appeal in limine ? on ground of its incompetence or for being fundamentally defective, which thereby rob the Court of the jurisdiction to entertain it. See COCACOLA (NIG) LTD V AKINSANYA (2017) 17 NWLR (Pt. 1593) 74 at 146; GEN ELECTRIC CO. V AKANDE (2010) 18 NWLR (Pt. 1225) 596; S.P.D.C.N. LTD v AMADI (2011) 14 NWLR (Pt. 1266) 157; NNPC v FAMFA OIL LTD (2012) 17 NWLR (Pt. 1328) 148. It is therefore judicially expedient to first determine the merit of the preliminary objection raised by the Respondent before proceeding, if need be, to consider and determine the merit of the Appeal on the basis of the grounds of appeal contained in the Notice of Appeal and in respect of the issues formulated for determination by the parties.
ARGUMENTS ON PRELIMINARY OBJECTION
The Respondent?s counsel argued that the Respondent/Claimant initiated her suit at the lower Court as MAUREEN EZEAKILE Vs. (1) JOHN NWAFOR EZEAKILE (2) VINCENT OTIONO (3) PERSONS UNKNOWN before the Court struck out the persons unknown on ground that it was not known to law and thereby left only two defendants as parties to the suit before the Court. Counsel referred to the Writ of Summons and Statement of Claim contained in pages 30 and 32 of the record of appeal.
It is the submission of counsel that, in pursuit and prosecution of the appeal, the Appellant however altered the parties to the appeal without any order of the Court by on his own removed the 2nd defendant as a ?party? before this Court. The learned Counsel contends that the alteration of the constitution of the parties in the suit before this Court is fraudulent and illegal; that it is the law that parties are bound by their pleadings before the Court, relying on the decision of the Supreme Court in NWAOGU Vs. ATUMA (2013) 9 NWLR (Pt. 1358) 134 and OREDOYIN Vs. AROWOLO (1989) 4 NWLR (Pt. 114) 172, where it was decided that an appeal was continuation of the original action, the nature and character of which cannot be changed on appeal.
Whilst referring to Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the learned counsel argued that the Appellant, having unlawfully changed the nature and character of the action in this appeal, has stripped this Court of its intrinsic competence to adjudicate on the appeal.
Whilst Responding in the Reply Brief, Counsel for the Appellant submits that the suit number is the same and that the second defendant is a nominal party to the entire suit as the issue under contention has to do with family property between a man and his ex-wife. It is also the submission of counsel that ?there is no dispute between the Appellant and the said nominal defendant, Vincent Otiono, so joinder of Otiono as a party in the first instance is mischievous and is an issue in the Court below. He relied on the decision of the Supreme Court in REGISTERED TRUSTEES OF APOSTOLIC CHURCH Vs. FATUNDE (2016) 11 NWLR (Pt. 1523) 228 before submitting that in deciding whether a party is a necessary party to the proceedings, there is need to decide (1) whether the matter can be decided in the absence of the party; (2) is the person one who ought to be joined; (3) is the presence of the additional party necessary for the effectual determination of the case, citing the decision of the Supreme Court in OYEDEJI MOGAJI Vs. FABUNMI (1986) 2 SC 431.
Submitting further, the Appellant?s counsel argued that the Court has always drawn a distinction between a ?proper party? and a ?necessary party?; a proper party being one who has interest in the suit without whom the matter cannot be effectually determined, relying on the decisions of the Supreme Court in MOBIL PRODUCING UNLIMITED Vs. LASEPA (2002) 12 SCNJ 1; PEENOK INVESTMENT LIMITED Vs. HOTEL PRESIDENTIAL (1982) 12 SC 1. He also cited the decisions of the Supreme Court in GREEN Vs. GREEN (1987) 3 NWLR (Pt. 61) 480; APC Vs. PDP (2015)3-4 MJSC 91 and A-G RIVERS STATE Vs. A-G AKWA-IBOM STATE (2011) 3 MJSC 93 to submit that a cause or matter shall not be defeated by reason of joinder or non-joinder of a party but that the Court can, if necessary, order that such a party be joined. He concluded that in the present case, the said OTIONO is neither a necessary party nor a proper party since none of the reliefs being claimed by the Respondents is against him; thus, the appeal can be effectually determined without involving him.
RESOLUTION
The objection raised by the Respondent herein is indeed a fundamental one which goes to the root of the competence of this Court to entertain the present appeal as constituted by the Notice of Appeal dated February 28, 2017, filed by the Appellant herein. It has been a well established principle of adjudication based on the Rules of this Court, that an appeal is for all intents and purposes, a continuation of the suit determined and concluded before the lower Court, the basis upon which an Appellant seeks for an appellate Court?s review. See the Unreported decision of this Court in T. M. LEWIN (NIG) LIMITED Vs. SMARTMARK LIMITED in Appeal No. CA/L/832/2015. Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 clearly provides that ?all appeals shall be by way of rehearing?.? Therefore, for the purpose of an appeal, a party must conduct his case in accordance with the character and nature of the suit being appealed against.
See the decision of this Court in VERALAM HOLDINGS LIMITED Vs. GALBA LIMITED & ANOR (2014) LPELR ? 22671 (CA) 8 to 9, paras D ? C, where EKO, JCA (as he then was) now JSC held as follows:
?The Notice of Appeal at pages 63 and 64, filed on 8th December, 2006 has only Lt. General T.Y. Danjuma (RTD) as the sole respondent in this appeal. Thus the parties in the suit leading to the appeal have been unilaterally altered without leave of Court.
By Order 6 Rule 2(1) of the Court of Appeal Rules, 2011, ?all appeals shall be by way of rehearing?. As stated in ADEGOKE MOTORS LTD v. ADESANYA (1989) 3 NWLR (Pt. 109) 250 at page 266, which principle of law was restated in NGIGE v. OBI (2006) 14 NWLR (Pt. 999) 1 at page 225; because an appeal is generally
9
regarded as continuation of the original suit, rather than the inception of a new action; parties are normally confined to the case, as pleaded, in the Court of first instance. The case at the Court below, being the Court of first instance, has the appellant, as the plaintiff, with Galba Ltd and Lt. Gen. T.Y. Danjuma (RTD) as 1st and 2nd Defendants respectively.
The unilateral alteration of the parties in the suit, as pleaded at the Court below, by the appellant as reflected on the notice of appeal renders the notice of appeal incompetent. With these parties improperly altered, on the notice of appeal, the said notice of appeal is liable to be struck out and it is hereby struck out?.?
Similarly, in a recent decision delivered on Friday, February 2, 2018 in CENTRAL BANK OF NIGERIA Vs. LINAS INTERNATION LIMITED & ORS (2018) LPELR ? 44819 (CA) this Court, per IGEH, JCA, at pages 20 to 23, paras B ? E, held thus:
“It is now trite law that an Appellant or a party seeking to appeal as an interested party cannot rearrange or reconstitute the parties to an action as constituted in the lower Court at Appellate Court.
10
The parties on record at the lower Court must be retained at Appellate level by an intending Appellant or an Applicant according to the parties to an action at lower Court which cannot be modified, struck out or removed from the proceeding without necessary application and the leave of the Appellate Court to modify, subtract or add to the parties as constituted at the lower Court. The structure of the parties cannot be unilaterally changed or amended by any of the parties to on appeal. See the cases of – 1. IN RE; APEH & ORS (2017) LPELR-42035 SC pages 45 and 49 where I. T. MUHAMMAD said: – “In the application on hand, it is never shown, anywhere that those who represented the applicants, or anyone of them died which would necessitate substitution. Further, none of the names of the representatives of the applicants has got his name legally removed or replaced from the proceedings as in situations (A) and (B) above. I agree with the learned SAN for the 1st set of respondents in his submission that the applicants initiated an application “seeking to remove the named parties representing the delegates and to implant theirs.” The law, Rules of Court and
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practice would not permit that. It is settled law that individuals are not allowed to unilaterally alter a case as constituted from the trial Court and the names of parties in that character must be maintained except as may otherwise be ordered by a Court of law. Our Order 2 Rule 8 of this Court’s Rules, 1985 (as amended) provides:- “Notices of Appeal, Applications for leave to appeal, Briefs and other documents whatsoever in pursuance of the appellate jurisdiction of the Court for filing in accordance with the provisions of these Rules, shall reflect the same title as that which (sic; are) contained in the Court of Trial” (underline is mine for emphasis).
See also the decision of this Court in AFRIBANK NIGERIA PLC & ORS Vs. NIGERIA DEPOSIT INSURANCE CORPORATION (2015) LPELR ? 24654 (CA).
From record before this Court, as reflected on the Writ of Summons and Statement of Claim at pages 30 to 36 of the record of Appeal, the parties as reflected thereon are ? MAUREEN I. EZEAKILE (Suing for herself and on behalf of her children) as CLAIMANT and (1) JOHN NWAFOR EZEAKILE; (2) VINCENT OTIONO; (3) PERSONS UNKNOWN as DEFENDANTS. However,
12
in the Notice of Appeal filed on February 28, 2017 at pages 85 to 86 of the record of appeal, the parties are reflected as MRS MAUREEN IFEOMA EZEAKILE as CLAIMANT/RESPONDENT AND 2. MR. JOHN NWAFOR EZEAKILE as DEFENDANT/APPLICANT. It is apparent that the parties in the suit in the lower Court are different from the parties on appeal. A cursory look at some of the processes in record filed at the lower Court shows that there were two known or named defendants before the lower Court. But curiously, there is nothing in the Record of Appeal showing at what point in time in the course of the proceedings, that the constitution of the parties changed. There is no application for leave to alter the names of any of the parties, neither is there any application on the face of the Record as compiled to strike out the name of any party. In as much as a party is not allowed to adduce fresh evidence on appeal, unless leave of the Court is sought and obtained, the Appellant cannot by himself unilaterally alter the names of the parties on appeal except by leave of Court. As I had earlier stated, an ?appeal shall be by way of rehearing?, and this postulates that the
13
same parties who were at the lower Court, are now the ones on appeal regardless of the nomenclature which the Appellant may want to ascribe to any of them either as ?nominal? or ?unnecessary party? against whom no relief is sought by the Respondent.
The Appellant?s counsel made a futile attempt to argue that the party whose name was purportedly removed and/or altered on the face of the Notice of Appeal, is not a necessary party, as to affect the competence of the appeal. He proceeded to argue that this Court can effectually determine the present appeal without the said party. With respect, the character of any case at its inception, remains so sacrosanct that only leave of Court can authorise any alteration in the case of transfer or transmission of interest, or any other form of alteration of the parties to the proceedings. See BESSOY LIMITED Vs. OLEKA & ANOR (2018) LPELR ? 44202 (CA). There is nothing on record to show that the Appellant put the Respondents on Notice as to the alteration of the parties in this appeal. It remains to be said that the issue at hand has nothing to do with the legal status of parties before the Court as the Appellant?s counsel wants us to believe; rather the question borders on the competence of an appeal which does not reflect the names of all the parties before the lower Court; or put differently, whether a party can alter the parties on record, merely because the party whose name was altered by its removal is not a ?necessary party?.
My Lords, in the light of this analysis and extant decisions of the Courts, I am unable to accept, as well founded, the proposition urged on us by the Appellant suggesting that the Appellant can by himself, unilaterally alter the names of the parties on record without the prior leave of Court first sought and obtained. An Appellant cannot alter at will, the constitution of the parties on record. The nature and character of the parties on record, must be consistent even on appeal up to the Supreme Court and shall remain so, until a proper application is made, and the alteration is sanctioned by the Court.
In the circumstance, I find merit in the Respondent?s objection that the alteration of the parties on record has invariably rendered the Notice of Appeal filed incompetent; and the consequence of an incompetent Notice of Appeal is that this Court lacks the jurisdiction to adjudicate upon an appeal that is predicated upon such Notice of Appeal. The result is that the Appeal is hereby struck out. Costs of N100,000.00 is awarded in favour of the Respondent against the Appellant.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment prepared by my learned brother, Gabriel Omoniyi Kolawole, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I have had the privilege of reading in draft the leading judgment just delivered by my learned brother, Gabriel Omoniyi Kolawole, JCA, and I agree that there is no substance in the appeal and that the same should be struck out.
For the same reasons set out in the said judgment, I equally strike out the appeal and abide by the consequential orders including those as to costs therein contained.
Appeal struck out.
Appearances:
S.E. Okeke, Esq.For Appellant(s)
U.O. Bodunwa, Esq.For Respondent(s)
Appearances
S.E. Okeke, Esq.For Appellant
AND
U.O. Bodunwa, Esq.For Respondent
