ADIEKU & ORS v. TARCHIR (2021)

ADIEKU & ORS v. TARCHIR

(2021)LCN/15171(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, March 11, 2021

CA/MK/200/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ORNGUGA ADIEKU 2. KORCHIA ADIEKU 3. TINE ICHOO 4. DOOSHIMA ICHOO 5. ICHINYAM MBAATIMGA (Sued For Themselves And On Behalf Of All The Descendants Of Akwemi Kum) APPELANT(S)

And

TORHILE TARCHIR (SUING FOR HIMSELF AND ON BEHALF OF ALL THE DESCENDANTS OF IMOM KUM) RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING THE CAPACITY TO SUE AND BE SUED OF A DEAD MAN; WHETHER A WRIT ISSUED IN THE NAME OF OR AGAINST A NON-JURISTIC PERSON (DEAD PERSON) CAN BE SUBSTITUTED WITH THAT OF A LIVING PERSON

The position of the law is settled that a dead man lacks the capacity to sue and be sued, see the case of APC V INEC & ORS (2014) LPELR-24036(SC) wherein the apex Court held thus: “The position of the law on the status of a dead person has been severally stated by this Court and other Courts. I will only cite few instances: 1. in the case of SGB Ltd. V. Braimoh (1991) 1 NWLR (pt. 108) 428 at p. 434 – D-G, it was held that: “It is settled law that a dead person ceases to exist in the eyes of the law and any cause or action pending against such a person automatically abates unless it is one that survives the person.” 2. In the case of Nzom v. Jinadu (1987) 1 NWLR (pt. 51) 533 at p. 539, this Court, per late Oputa, JSC, held inter alia: “the dissolution of legal person is analogous to the death of an ordinary human person…dead men are no longer legal persons in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be sue of.” Commenting on the above dictum, my learned brother, M. D. Muhammad, JCA (as he then was), stated that: “I unhesitatingly add that such dead man cannot equally appeal against decisions not in their favour nor can they respond in an appeal, attempting to sustain such decisions which during their lifespan, favoured them. Whether at trial in first instance Courts or on appeal, dead men lack legal existence which parties must have to give them the competence.”…see: CCB (Nig.) Plc. V. O’silvawax Int. Ltd. (1999) 7 NWLR (Pt. 609) 97 at p.103 G – H.” Infact a similar situation arose in the case of NZOM & ANOR V JINADU (1987) LPELR-2143(SC) where Oputa, J.S.C had this to say: “…dead men are no longer persons in the eye of the law. The personality of a human being is extinguished by his death. A dead man cannot therefore represent the family of another dead man especially when, as in this case, Patrick Nzom died 22 years before J. C. Nzom. The position is that as a Writ issued on 10/2/73 against Patrick Nzom who died in 1949, that is 21 years before the trespass complained of, the Writ is null and void.” See also the following cases of DAIRO & ORS V. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR-42573(SC); EZENWOSU V. NGONADI (1988) LPLER-1207 (SC) and OTU V. ACB INTERNATIONAL BANK PLC & ANOR(2008) LPELR-2827(SC). Similarly, a Writ issued 13/6/2017 long after the named Plaintiff Tarchir Waakov had died in 2008 cannot be a valid writ of summons, the writ is null and void. If the writ is null and void, could there be a valid substitution of the Plaintiff? Can the living person replace a dead person? The obvious answer is No and as held in MCFOY V UAC (1961) 3 WLR 1405 AT 1409; you cannot put something on nothing and expect it to stand, it will collapse. In the case of NJOKU V U.A.C. FOODS (1999) 12 NWLR) Pt. 632) 557 at 565, the Court on the question of substituting a non-juristic person (dead person) with a living person said thusly: “An amendment for the substitution of a non-juristic person by a juristic person is not at all feasible and must be refused. There was nothing to substitute. See Gani Fawehinmi v. NBA(2) (1989) 2 NWLR 105 – 558; Hiflow Farm Industry v. Unibadan (1993) 4 NWLR (pt.290) 719. The dominant judicial view is that when a Court is approached with a prayer for the amendment sought by the Appellant and it refused same, it proceeds not only to strike out the name of his non-existing party but also the suit in its entirety. See Okechukwu v. B.S.A. Ndah (1967) NMLR 368.” It is settled that once a suit is initiated in such a faulty or defective manner, it cannot be amended, it is dead on arrival and cannot also inure jurisdiction on the Court to take any step in the matter. There is no life in the suit that the Court can give cognizance to. The suit is incompetent ab initio. Competent and proper parties is a feature of jurisdiction, see GOODWILL & TRUST INVESTMENT LTD & ANOR V WITT & BUSH LTD 2011) LPELR-1333(SC) where ADEKEYE, J. S. C held: “It is trite law that for a Court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the Court as it goes to the foundation of the suit in limine. Where proper parties are not before the Court then the Court lacks jurisdiction to hear the suit. Best Vision Central Limited v. UAC NPDC Plc. (2003) 13 NLWR pt. 838, pg. 394., Ikene v. Anakwe (2000) 8 NWLR, Pt. 669, pg. 484, Peenok Limited v. Hotel Presidential (1983) 4 NCLR pg. 122, Ehudimhen v. Musa (2000) 8 NWLR pt. 699, pg. 540.”
See also the following cases of PLATEAU STATE OF NIGERIA & ANOR V. A.G. FEDERATION & ANOR(2006) LPELR-2921 (SC); AZUOMA & ORS V. SPDC (2019) LPELR-4758 (CA) and AMADIUME & ANOR V. IBOK & ORS (2005) LPELR-5730 (CA). Therefore, proper parties also affects jurisdiction and where as in this case, there was no plaintiff, the Court lacked jurisdiction to determine the suit. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER PARTIES CAN BY THEIR CONDUCT OR ACQUIESCENCE CONFER JURISDICTION ON THE COURT, WHERE SUCH JURISDICTION IS LACKING

Parties cannot acquiesce to bestow jurisdiction on a Court, see AGBULE V. WARRI REFINERY & PETROCHEMICAL CO. LTD (2012) LPELR-20625(SC) wherein the apex Court held thus: “…parties cannot by whatever means confer on a Court a jurisdiction it does not have. It is either the Court has the jurisdiction or it does not. Also, Court’s judgment arrived at in the absence of jurisdiction is a nullity and it is most perverse to allow such a contraption to endure. See Aladegbemi v. Fasanmade (1988) 3 NWLR (part 81) 129 and Lakanmi v. Adene (2003) 10 NWLR (part 828) 353.”Per MUHAMMAD, J.S.C And also the case of ABUNG & ORS V. EKABOKON GLOBAL SERVICES LTD & ORS (2018) LPELR-44791 (CA) where the Court held thus: “Undoubtedly, parties cannot by their conduct or acquiescence confer jurisdiction on the Court, where such jurisdiction is lacking. See OKOTIE – EBOH VS OKOTIE EBOH [1986] 1 NWLR [Pt. 16] 246 @ 345; DONGTOE VS CSC, PLATEAU STATE [2001] 6 NSCQR 328 @ 328; EFFIOM VS EDET [2016] LPELR – CA/C/237/2014 @ 16 paragraphs A – B. In IJEBU – ODE LOCAL GOVERNMENT VS ADEDEJI BALOGUN & CO. LTD., the Apex Court aptly held: Parties cannot by their conduct vest jurisdiction in the Court where none exists. Hence, the conduct of the Appellant in approbating the exercise of jurisdiction where none existed cannot constitute an estoppels. See [1991] LPELR – 1463 [SC], per Karibi-Whyte, JSC, @ 27 paragraphs B- E. The significance of the above doctrine is that the issue of lack of jurisdiction can be raised at any stage of the proceedings, by the parties or even suo motu by the Court [trial or appellate]. This is absolutely so, because where the objection or issue challenging jurisdiction is upheld, it fundamentally terminates and disposes of the matter in limine without the need of further proceedings. See IJEBU-ODE LOCAL GOVT. VS ADEDEJI [supra] @ 27; EBHODAGHE VS OKOYE [2004] 18 NWLR [Pt. 905] 472; [2004] LPELR @ 29 – 30 F – C.” Per SAULAWA, J.C.A Further support in the following cases ONWUDIWE V. FRN (2006) LPELR-2715 (SC); ADEYEMI V. STATE (1991) LPELR-172(SC) and NNONYE V. ANYICHIE & ORS (2005) LPELR-2061(SC). The issue of jurisdiction is fundamental and goes beyond a party waiving its right of protest. The importance of jurisdiction was reiterated in the case of IKPEKPE V. WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR-44471 (SC) wherein the apex Court held thus: “The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted. See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675.” Per OKORO, J.S.C And the case of PETROJESSICA ENTERPRISES LTD & ANOR V. LEVENTIS TECHNICAL CO. LTD (1992) LPELR-2915(SC) wherein the apex Court held thus: “Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The Federal High Court’s jurisdiction is clearly set out in S. 7 of the Federal High Court Act (Cap. 134 Laws of Federation of Nigeria, 1990) and that Court cannot arrogate to itself a jurisdiction it has not gotten. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. (Osadebay v. A-G., Bendel State (1991) 1 N.W.L.R (Pt. 169) 525; Owoniboys Tech. Services Ltd. v. John Holt Ltd. (1991) 6 N.W.L.R (Pt. 199) 550; Okesuji v. Lawal (1991) 1 N.W.L.R (Pt. 170) 661; Katto v. Central Bank of Nigeria (1991) 9 N.W.L.R (Pt. 214) 126; Utih v. Onoyivwe (1991) 1 N.W.L.R (Pt. 166) 166).” Per BELGORE, J.S.C. See also the following cases of KURMA V. SAUWA (2018) LPELR-4631 (SC) and ARUEZE & ORS V. NWAUKONI (2018) LPELR-46352(SC). The right of a party to challenge the jurisdiction of a Court cannot be waived and once a Court lacks jurisdiction the suit must be struck out because, any step taken or proceedings conducted is a waste of time and a nullity. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED ORALLY

…see BUREMOH V. AKANDE (2017) LPELR-41565 (SC) where Per KEKERE-EKUN, J.S.C has this to say: “The settled position of the law is that the issue of Jurisdiction, being so fundamental to the Court’s power to adjudicate, can be raised at any stage of the proceedings, even before this Court. It can be raised orally. It can also be raised suo motu by the Court. This is because, no matter how well the proceedings are conducted or how erudite the judgment arising therefrom, it all amounts to a nullity where the Court lacks jurisdiction. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 587; Nnakwe Vs The State (2013) 7 SCNJ 179; Oloriegbe Vs Omotesho (1993) 1 SCNJ 30.” And the apex Court in the case of SALISU & ANOR V. MOBOLAJI & ORS (2013) LPELR-22019 (SC) held: “It is not out of place to stress that the issue of jurisdiction is a threshold one which this Court, in Elugbe v. Omokhafe (2004) 11-12 SC 60, has held must not be treated lightly. The point has repeatedly been made that no matter how well proceedings were conducted by a Court the proceedings would come to naught and remain a nullity if same were embarked upon without jurisdiction. This explains the principle of law which allows the issue of jurisdiction to be raised orally and even for the first time in this Court. See Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 6 SC (part 11) 1; Katto v. CBN (1991) 11-12 SC 176; Oloriode v. Oyebi (1984) 5 SC 1; Ezomo v. Oyakhire (1985) 2 SC 260 at 282 and Lado & 43 others v. CPC & 53 Ors (2011) 12 SC (part 111) 113.” Per MUHAMMAD, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER WHEN IT IS FOUND THAT THE COURT IS DIVESTED OF THE JURISDICTION TO HEAR AN APPEAL THERE IS NO NEED TO PROCEED TO RESOLVE THE OTHER ISSUES

Ordinarily, the appeal terminates at this stage, when the issue of jurisdiction is resolved and suit struck out, there is no need to proceed to resolve the other issues, see the case of EFFIOM V ETENG (2018) LPELR-46130(CA) where the Court per OGBUINYA, JCA said thusly: “Having found that this Court is divested of the jurisdiction to hear the appeal, the law makes it idle to consider the other issues canvassed by the feuding parties. In Ikechukwu v. FRN (2015) NWLR (pt. 1457) 1 at 21, Nweze, JSC, incisively, declared: It cannot be gainsaid that, as a general rule, an intermediate Court, like the lower Court, (Court of Appeal) has a duty to pronounce on all the issues before it…. However, there are some exceptions to the above rule that applies to the lower Court, as an intermediate Court. Thus, for example, where the said Court, as an intermediate Court, decided that it lacks jurisdiction in an appeal before it, it, then becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction… See also, Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80. Where the jurisdiction of a Court to hear a matter is undermined, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd.(2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481.” See also IKECHUKWU V. FRN (2015) NWLR (PT. 1457) 1 AT 21 and SHASI & ANOR V SMITH & ORS (2009) LPELR-3039(SC) where the same principle was reiterated and the exception recognized; it held thus: “As a matter of fact and law this is the final Court and one of its attributes arising from this privileged position is the power of deciding an appeal before it even on resolving one issue which is decisive amongst other issues submitted before it for adjudication. This may not be the case with regard to the intermediate lower Courts excepting if within the narrow exceptions as contemplated in the cases of F.C.D.A. V. SULE (supra) that is, where it is decided that the Court lacks jurisdiction in the matter before the Court it then becomes unnecessary to consider other issues once a decision has been taken on the issue of jurisdiction, also See: ORO V. FALADE (Supra) and IFEANYI CHUKWU (OSONDU) LTD. V. SOLEH BOUSH LTD. (2000) 5 NWLR (Pt. 656) 322 at 352; and again, as rightly pointed out by this Court in SAPARA VS. U.C.H. BOARD (1988) 4 NWLR (Pt.56) 58 at 61 to the effect that an appellant before an appellate Court has a constitutional right to a determination by that Court of all the issues submitted to it.” Per CHUKWUMA-ENEH, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER A COURT CONFRONTED IN A SUIT WITH BOTH THE MAIN AND COUNTERCLAIMS, MUST GIVE SEPARATE JUDGMENT ON EACH OF THE CLAIMS

… see OROJA & ORS V. ADENIYI & ORS (2017) LPELR-41985 (SC) wherein the apex Court held thus: “…a counter claim is always considered as an independent, separate and distinct claim which a Court must always consider. A trial Court confronted in a suit with both the main and counterclaims, must give separate judgment on each of the claims as each of such claim is independent of one another in this instant case.” Per SANUSI, J.S.C And the case of NSEFIK & ORS V. MUNA & ORS (2013) LPELR-21862 (SC) wherein the apex Court held: “It is also relevant to observe that a counter claim is a distinct action in its own right even though made a part of the main claim. It would not fall for consideration until the main claim has been determined. A separate decision would be given in respect of the counter claim. Jeric (Nig.) Ltd. v. U.B.N. Plc (2000) 12 SC (pt. II) 133; Obimiami Brick & Stone Nig. Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt. 229) 260. After all, at the conclusion of the main trial the counter claimant is at liberty to abandon his counter claim, if he so desires.” Per KEKERE-EKUN, J.S.C See the following cases OKONKWO V. COOPERATIVE & COMMERCE BANK (NIG) PLC & ORS (2003) LPELR-2484 (SC) and BELOXXI & CO. LTD V. SOUTH TRUST BANK & ORS (2012) LPELR-8021(CA). PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHO IS A DEFENDANT

…see the case of AKINDELE V ABIODUN (2008) LPELR-8557(CA) which explained the import of a Defendant and the necessity of a valid Defendant to a claim, it said: “It is rudimentary that the word “defendant” means a person sued in a civil proceeding or accused in a criminal proceeding – I refer to the Black’s Law Dictionary, Eighth Edition at pages 450 to 451 where the word “defendant’ was so defined. Put in other words, it can be said that a defendant is the title given to or the status of a person sued whether natural or juristic. A “defendant” is a person who in law or fact is qualified, capable and has the ability to be called upon to reasons why the plaintiff or prosecutor (that is, the person who institutes an action) should not have a valid case and should not recover or establish that Which he seeks by his complaint or petition. A party is further defined “inter alia” in the Black’s Law Dictionary as one by or against whom a lawsuit is brought. By simple logical deduction, a party can either be a plaintiff or defendant whether composed of one or more individuals and Whether natural or legal persons. Put differently, a person who takes part in a legal transaction or proceeding is said to be a party to it or a person whose name is designated on record as a plaintiff or defendant. It refers to a person by or against whom a legal suit is brought, whether in law or in equity. See: Obingwa LG vs. Muoma (2001) 18 NWLR (pt. 744) p. 71.” PER YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering The Leading Judgment): This Appeal is against the decision of the Benue State High Court sitting in Sankera delivered by HON. JUSTICE T. A. KUME on the 27th June, 2018 wherein the lower Court entered judgment against the Appellants. The Appellants dissatisfied with the judgment, filed an Amended Notice of Appeal dated 23rd October, 2018 setting out 9 grounds of Appeal.

Facts leading to this appeal are straight forward and amenable to brief summary. Issues were joined by pleadings and the matter went to full trial with parties calling witnesses in proof of their respective pleadings. After full consideration, the Court below entered judgment against the Appellants, thus the appeal.

The Appellants’ brief settled by A. I. WOMBO, ESQ., is dated 23rd day of October, 2018 and filed on the 24th October, 2018, and it distilled 5 issues for determination as follows:
1. Whether a Court of law has jurisdiction to entertain an action instituted in the name of a deceased person, after making an order substituting the said deceased person with a living person? (Ground one).

Whether the non-inclusion and adoption of statement on oath of witnesses in their original version alongside the English language version is a procedural irregularity?
(Ground 2)
3. Whether the written statement on oath made in the name of Tarchir Waakov (who died in 2008) but adopted by PW5 at the trial is not incompetent and void simply because Appellants’ counsel cross examined PW5 on the said witness statement of Tarchir Waakov.
(Ground 3)
4. Whether the decision of the trial Court that the land in dispute is the family land Kum Ikya thereby making an order for the partitioning of the land in two equal halves between the Appellants and the Respondent was based on the evidence before it. (Grounds 4,5,6 and 7)
5. Whether the Appellants did not prove their counter claim at the trial? (Ground 8)

The Respondent’s Brief settled by P.D. ADI, ESQ., is dated 23rd June, 2020 and filed on the 25th June, 2020 and he adopted the 5 issues formulated by the Appellants.
Thereafter the Appellants filed a Reply brief dated 10th July, 2020 and filed on the same day.

The Respondent also filed a Notice of Preliminary Objection setting out 9 grounds in support of the objection. Attached to the Preliminary Objection is a written address in support of the Preliminary Objection. And the following issues were formulated:
1. Whether a Notice of Appeal without a brief of argument is a competent Appeal.
2. Whether Appellants 2nd Notice of Appeal titled “Amended Notice of Appeal” is competent in law.

PRELIMINARY OBJECTION
GROUNDS UPON WHICH THE OBJECTION IS RAISED
1. That record of Appeal No. CA/MK/200/2018 for Notice of Appeal filed on 11/7/2018 was transmitted from the lower Court to this Honourable Court on 17/9/2018 and appeal entered as Appeal No. CA/MK/200/2018.
2. That the Appellants are required by the rules of this Honourable Court to file Appellants brief of argument within 45 days upon service/receipt of the record of Appeal.
3. That the Appellants were served with the records on the 17/9/2018.
4. That no brief of argument had been filed in respect of the 1st Notice of Appeal filed on the 11/7/2018.
5. That the Appellants failed, refused and/or neglected to file Appellant brief of argument in respect of

the Notice of Appeal filed on the 11/7/2018 contained on pages 406 to 414 the printed records.
6. That the Appellants refused and/or neglected to file Applicants’ brief of argument on the 1st Notice of Appeal filed on 11/7/2018 contained on pages 406-413 of the printed records, the Appellants rather filed a fresh or 2nd Notice of Appeal on the 24/10/2018 with a brief of argument in respect of the later notice of Appeal (i.e. one filed on 24/10/2018).
7. That the Appellants brief of argument filed on 24/10/2018 is based on the 2nd Notice of Appeal filed on 24/10/2018 but not based on the 1st Notice of Appeal filed on 11/7/2018 i.e. putting the cart before the horse.
8. Appeals are based on competent grounds and competent issues arising from those competent grounds
9. Appellants’ grounds 1, 2, 3, 4, 5, 6 & 8 of the grounds of Appeal are incompetent grounds.

ARGUMENT IN SUPPORT OF THE PRELIMINARY OBJECTION
ISSUE ONE
The Respondent/Applicant argued that a Notice of Appeal without a brief of argument is an incompetent appeal as provided by the Rules of this Honourable Court under Order 19 Rule 2 & 10. The

Respondent/Applicant submits that the Appellants/Respondents failed to file their brief of argument in respect of the Notice of Appeal filed on the 11/7/2018 therefore rendering the said appeal incompetent and liable to be dismissed upon the application of the Respondent/Applicant. This Preliminary Objection asked this pertinent question: Can an application for an amendment of the 1st Notice of Appeal filed on the 11/7/2018 lie in the face of the absence of Appellants’ brief of argument in support of the 1st Notice of Appeal filed on the 11/7/2018? He answered with a certain No, it is trite law that you cannot place something on nothing and expect it to stand, citing MCFOY V. UAC (1964) A.C. The Respondent/Applicant urged this Honourable Court to invoke the provisions of Order 19 Rules 2 and 10 of the Rules of this Court to dismiss the Appeal.

ISSUE TWO
The Respondent/Applicant submits that ground 1, 2, 3, 4, 5, 6, 7, 8 & 9 of the purported “Amended Notice of Appeal” filed on the 24/10/2018 are incompetent same having not arisen from the decision or the ratio decidendi of the Court below thereby making the grounds of appeal

unreasonable. He relied on UDOETE V. HEIL (2002) 13 NWLR (PT. 783) 64. The judgment of the Court below sought to be challenged before this Honourable Court was delivered on 27/6/2018 and the purported “Amended Notice of Appeal” was filed on 24/10/2018. He further submits that the Amended Notice of Appeal was filed outside the period of 3 months from the date of the judgment of the Court below. Therefore, the 2nd Notice of Appeal filed outside the period of 3 months without leave of Court cannot stand on its own. The Respondent/Applicant urged this Honourable Court to dismiss the purported “Amended Notice of Appeal” filed on 24/10/2018 because its grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 are incompetent.

Upon being served with the Application, the Respondents/Appellants filed a Counter affidavit of 13 paragraphs duly sworn to by THOMAS TORKUMA SHACHIA ESQ., a legal practitioner in the Law firm of A.I. Wombo and Co. and attached to the counter affidavit is a reply brief to the Respondent’s/Applicant’s argument in support of Preliminary Objection.

The Appellants/Respondents submits that the Respondent/Applicant is seeking that this appeal be dismissed for want of diligent prosecution, however, he failed to establish any lack of diligence on the part of the Appellants/Respondents rather he challenged the competence of the Notice of Appeal filed by the Appellants/Respondents. The Appellants/Respondents submit that there is a world of difference between an alleged lack of diligence and a challenge to the competence of a Notice of Appeal, the Respondent’s/Applicant’s supporting affidavit and the arguments do not relate to or support the relief sought which in consequence, the relief sought in the Notice of Preliminary Objection is bereft of facts and arguments and on this score alone, therefore the Preliminary Objection is liable to be dismissed. According to the Appellants/Respondents, the averments in their Counter affidavit are to the effect that the Notice of Appeal was filed within time and the Records of Appeal compiled and transmitted within time and as it stands, the Appellants/Respondents are ready for the hearing of the appeal upon the grant of their application for amendment. The Appellants/Respondents also submits that the Respondent/Applicant is under

false impression that the Appellants/Respondents filed two separate Notices of Appeal, even if the Appellants/Respondents had filed numerous notices of appeal, the law permits the Appellants/Respondents to file a brief of argument in respect of one notice of appeal and abandon the rest if he so please. This was stated in S.P.D.C.N LTD V. AGBARA (2016) 2 NWLR (PT. 1496) 353. Also, the Appellants/Respondents stated that the contention of the Respondent/Applicant that the Appellants/Respondents ought to have filed a brief of argument in respect of the Notice of Appeal filed on the 11th day of July, 2018 before Appellants/Respondents can apply to amend the Notice of Appeal is misconception of the provisions of Order 19 Rule 2 and 10 of the Court of Appeal Rule, 2016.

The Appellants’/Respondents’ submission on issue two is that the Respondent’s/Applicant’s argument that grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 are incompetent as the said grounds of appeal do not arise from the decision of the lower Court, he woefully failed to show or demonstrate how the grounds did not arise from the decision. The Court will not conduct a case for the

parties as stated in UCHA V. ELECHI (2012) 13 NWLR (PT. 1317) 330. The Appellants/Respondents further argued that they filed a Notice of Appeal against the decision of the lower Court on the 11th day of July, 2018, within the period permitted by law and the Amended Notice of Appeal filed on the 24th day of October which will come into effect upon the grant of the Motion on Notice. There is no confusion about these facts as upon the grant of the said amendment, the Amended Notice of Appeal will take effect from the date the earlier one was filed. The law is firmly settled that once an amendment is granted, it takes effect from the date the earlier process was filed as held in N.S.E. V. KATCHY (2017) 7 NWLR (PT. 1564) 273 and U.B.N PLC V. OSAZEE (2011) 7 NWLR (PT. 1246) 293.

RESOLUTION OF PRELIMINARY OBJECTION
The contention and objection against the Notice of Appeal and Appellants’/Respondents’ failure to file brief in respect of the Notice of Appeal filed on the 11th day of July, 2018 was overtaken by the motion filed by the Appellants/Respondents on the 29/10/2018 which sought to amend the Notice of Appeal and which was granted without

any objection on the 26/1/21 thus, deeming the amended Notice of Appeal as duly filed and served, thus putting to rest the objection and arguments in respect of the original Notice of Appeal.

The Court shall now consider the second arm of the Preliminary Objection which challenges the competence of the grounds of appeal. The objection shall be considered against the Amended Notice of Appeal which is the extant Notice of Appeal. That means issue one formulated for determination under the Preliminary Objection has become spent, academic and is hereby struck out. Issue two is live for consideration and it questions the competence of the Amended Notice of Appeal as it contends that all the grounds are incompetent. The Arguments for and against were summarized earlier. It is noted that the Respondent/ Applicant relied on the arguments in the Respondent’s Brief particularly at pages 1-4, therefore, the written address accompanying the Preliminary Objection was abandoned.

The gravamen of the second issue is that the 9 grounds named in the Amended Notice of Appeal do not arise from the decision of the trial Court or the ratio decidendi of the Court below thus the grounds do not flow from the judgment appealed against.

Another argument proffered by the Respondent/Applicant is that the notice of appeal filed on the 24/10/2018 was filed out of time and contrary to Section 24(2) of the Court of Appeal Act, 2004 because the judgment was delivered on 27/6/2018. That the Notice filed outside the three months was filed without leave and therefore incompetent. As indicated earlier, all arguments in respect of the amended Notice of Appeal has been overtaken by the grant of leave to amend the original Notice of Appeal. With regards to the aspect touching on incompetent grounds arising from the fact that they do not arise from the judgment appealed no arguments were proffered, be that as may, the objection shall be considered on its merits.

A ground of appeal is a statement of complaint against the ratio in the judgment appealed against, it must therefore arise from the judgment, it was defined in the case of BHOJSONS PLC V KALIO (2006) LPELR-777(SC) thus:
“Grounds of appeal are the complaints of the appellant on the judgment appealed against. They are the pillars on which the entire appeal stands and an appellate Court cannot go outside them in search of greener pastures for any of the parties.” Per TOBI, J.S.C.

A ground of appeal must arise from the judgment because it is a complaint against the judgment and it must be founded on a ratio decidendi but there are few exceptions, see ENEH V OZOR & ANOR (2016) LPELR-40830(SC) which held as follows:
“It is well settled law that grounds of appeal must arise or flow from or tied to the judgment of the Court appealed against. In fact, a ground of appeal need to be against the ratio decidendi of a judgment and NOT against obiter dictum or any remarks by the Judge except where the obiter or remark is so closely linked with the ratio as to be deemed to have radically influenced the ratio. See NDULUE & ANOR v. OJIAKOR & 2 ORS (2013) 1-2 SC (Pt. 11) 91; XTOUDOS SERVICES NIG. LTD v. TAI SEI (WA) LTD (2006) 6 SC 200.”

Looking at the Amended Notice of Appeal filed on the 24/10/2018 and deemed on the 26/1/21, it consists of 9(nine) grounds of appeal. I will reproduce them shorn of their particulars, they state thus:
GROUND ONE:
The learned trial Judge erred in law when he acted without

jurisdiction and entertained Suit No. SHC/6/2017 instituted in the name of a deceased person, Tarchir Waakov after making an order substituting the said Tarchir Waakov with Torhile Tarchir and this occasioned a miscarriage of justice.
GROUND TWO:
The learned trial Judge misdirected himself in law when he held that:
“In any event, the complaint of learned counsel for the defendants in respect of issues 1 of his issue for determination relates to a procedural irregularity in the commencement and conduct of proceedings before a Court of law. The defendants, with their learned counsel actively participated in the proceedings as earlier stated without raising any objection to the evidence of PW1, PW2, PW3, and PW4.”
And went ahead to hold that the Defendants, with their learned Counsel have waived their right to complain of the procedural irregularity raised by them in issues 1 and 2 of the final written addresses of the defendants”.
When the non-inclusion and adoption of written statements on oath of witnesses translated in English language without the original ones made in vernacular by the witnesses is not permissible

by law and this occasioned a miscarriage of justice.
GROUND THREE:
The learned trial Judge erred in law when he held that:
“The Defendants, with their learned Counsel did not also raise any objection when PW5 adopted the evidence of Tarchir Waakov as his evidence in the Suit. Tarchir waakov, as shown in the evidence in Court died in 2008. This suit was filed on 13/6/2017. The name of the suit was amended from Tarchir Waakov to that of Torhile Tarchir on the 5/12/2017. The Defendants, and his learned Counsel did not object to the amendment.
The statement on oath which PW5 adopted in Court as his evidence was filed on 13/6/2017. I believe that the said Statement on Oath was signed and filed by PW5, even though it has the name of Tarchir Waakov on it. The learned Counsel for the Defendants cross examined PW5 on the said evidence with the name of Tarchir Waakov on it. The learned Counsel for the Defendants cross examined PW5 on the said evidence with the name of Tarchir Waakov.”
GROUND FOUR:
The learned trial Judge misdirected himself when he held that:
“ I hereby find as a fact that the land in dispute is the

family property of Kum Ikya and not the exclusive property of Adieku from other family members of Kum Ikya are not entitled to the beneficial use of it. I hereby hold that the customary rights common between the plaintiff and the defendants extends to and covers the land in dispute. The contention of the defendants and the submissions of learned counsel for the defendants to the contrary are hereby dismissed.”
When it was clear from the evidence of the Appellants and that of PW1 and PW2 that the Plaintiff and the defendants are not the same lineage neither do they have, use or enjoy a common family land and this occasioned a miscarriage of justice.
GROUND FIVE:
The learned trial Judge misdirected himself in holding that:
“…the parties in this suit called the land in dispute ‘Tse Kum or Tse Imon’ or Tse Adieku, the different names used by the parties in describing the land is of no moment. What is material is that the parties are in agreement as to the identity of the land in dispute between them. Thus, the fact that different names are given to the land in dispute by the parties does not change the identity

of the land in dispute and I hereby so hold.”
When the identity given by the Appellants in respect of the land in dispute is totally different from the identity of the land given by the Respondent and this occasioned a miscarriage of justice.
GROUND SIX:
The learned trial judge misdirected himself when he held that the land in dispute was the family land of Kum Ikya and in that holding, went ahead and partitioned the disputed land into two equal parts in the manner contained in paragaraph 45 of the statement of claim when there was unchallenged evidence by the Appellants that Kum Ikya had never lived on the disputed land and this occasioned a miscarriage of justice.
GROUND SEVEN:
The learned trial Judge erred in law when he relied on Exhibits “A” and “D1” to hold that Exhibits “A” and “D1” proved that Appellants and the Respondent are the descendants of Kum Ikya when Exhibit “A” was inadmissible in law and Exhibit “D1” was tendered for a different purpose and not to prove family relationship between the Appellants and the Respondent and this, occasioned a miscarriage of justice.

GROUND EIGHT:
The learned trial Judge erred in law when he held that:
“I hereby hold that the defendants have failed to prove their counterclaim. The said counterclaim is hereby dismissed.”
When Appellants led evidence in proof of their counter claim and there was no defence to the Appellants’ counter claim and this occasion a miscarriage of justice.
GROUND NINE:
The decision of the trial Court is against the weight of evidence.

Upon a careful review of the grounds reproduced above, it shows that grounds one and two have jurisdictional challenge properly raised in the Notice of Appeal and it is trite that a party requires no leave of Court to raise it and it can be raised for the first time on appeal, even viva voce, see APGA V. OYE & ORS (2018) LPELR-45196(SC) where the apex Court held thus:
“…However, the issue of jurisdiction constitutes an exception to this general principle, for it (such an issue of jurisdiction), could be raised for the first time before an appellate Court with or without leave. Obiakor & Anor v. The State (2002) 10 NWLR (Pt. 776) 612 at 625,

para G; Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Oyakhire v. The State (2006) 7 SCNJ 319, 327-328; (2006) 15 NWLR (Pt. 1001) 157; Okoro v. Nigerian Army Council (2000) 3 NWLR (pt. 647) 77, 90-91; Ajakaiye v. Military Governor, Bendel State (1993) 9… “In consequence, it can never be too late to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration. Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722 at 735; Akegbejo v. Ataga (1998) 1 NWLR (Pt. 534) 459 at 465; State v. Onagoruwa (1992) 2 SCNJ 1, (1992) 2 NWLR (Pt. 221) 33; A-G., Lagos v. Dosunmu (1989) 3 NWLR (Pt. 111) 552. Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so. Obikoya v. The Registrar of Companies (1975) 4 SC 31, 35; N.N.P.C. v. Orhiowasele and Ors (2013) LPELR-20341 (SC). These are clearly matters of law or error therein and so needs no leave to appeal.” Per PETER-ODILI, J.S.C
See also the cases of AGBITI V. NIGERIAN NAVY (2011) LPELR-2944(SC); APC V. NDUUL & ORS (2017) LPELR-42415 (SC) and APC V. JOHN & ORS (2019) LPELR-47003 (CA).

Considering the judgment appealed against and grounds 3-8 all the grounds take root from the judgment with excerpts of what the Judge said in arriving at the final decision and which influenced him. Ground 9 is an omnibus ground which is a general complaint against evaluation and the nature and scope of the omnibus ground was fully explained in the case of SHA V. KWAN & ORS (2000) LPELR-3031(SC) in the following way:
“In this connection, it will be necessary to examine briefly the meaning and impact of the general or the omnibus ground of appeal. This, generally speaking, is said to imply that the judgment of the trial Court cannot be supported by the weight of the evidence adduced by the successful party which the trial Court either wrongly accepted or that the inference drawn or conclusion reached by the trial Court based on the accepted evidence cannot be justified. Additionally, it covers cases where there is no or acceptable evidence to support the findings of the trial Court. It also concerns situations in which when the evidence adduced by the appellant is weighed on the imaginary scale against that adduced by the

respondent, the evidence in favour of the appellant, qualitatively speaking, outweighs that adduced on behalf of the respondent to the extent that the judgment given in favour of the respondent can be said to be against the totality of the evidence adduced before the trial Court. See Anachuna Anyaoke and Others v. Dr. Felix Adi and Others (1986) 3 NWLR (Pt.31) 731; Chief Mba Ogboda v. Daniel Adulugba(1971) 1 All NLR 68 at 71; Mba Nla and Others v. Edo Nwede Anigba and Others (1972) All NLR (Pt. 2) 74 at 80. Indeed in the Anachuna Anyaoke and Others v. Dr. Felix Adi and others (1986) 3 NWLR (Pt.31) 731; Chief Mba Ogboda v. Daniel Adelugba (1971) 1 All NLR 68 at 71; Mba Nla and Others v. Edo Nwede Anigba and others (1972) All NLR (Pt. 2) 74 at 80. Indeed in the Anachuna Anyaoke and others v. Dr. Felix Adi & others’ case (supra) at p.742, Uwais, J.S.C., as he then was, rounding up his observations with regard to the full implications of the omnibus ground of appeal succinctly concluded thus:- “In deciding upon these issues, it may be relevant to consider whether the trial Judge was right in giving credibility to the testimonies of witnesses called by the

successful party. If the credibility was wrongly given, then that would of course affect the cogency given to the testimonies.” See too Saka Atuyeye and others v. Ashamu (1987) 1 NWLR (Pt.49) 267 at 282. So wide, therefore, is the meaning, scope and impact of the omnibus ground of appeal.”Per IGUH, J.S.C
See also the following cases ATUYEYE & ORS V. ASHAMU (1987) LPELR-638(SC); FINNIH V. IMADE (1992) LPELR-1277(SC) and KINGSMAN MERCHANT CO. (NIG) LTD V. ECOBANK (2017) LPELR-42924(CA).

Having traced the grounds of appeal to the judgment, I am at a loss as to what exactly the Respondent/Applicant intended by the objection. The grounds definitely take root in the judgment appealed against and the objection argued as issue two is incompetent and must be dismissed for lacking in merit.

MAIN APPEAL
THE APPELLANTS SUBMISSION
ISSUE ONE
The Appellants argued that in 2017 the Respondent instituted the action in the name of Tarchir Waakov, who died since 2008, this was also confirmed by the trial Judge in his finding at page 325-326 of the record of Appeal. The Appellants submits that the Respondent’s Counsel sought and obtained an

order substituting Tarchir Waakov(deceased) with Torhile Tarchir as the Plaintiff (see p. 378-379 of record). However, it is trite that a Court of law has no jurisdiction to entertain an action instituted in the name of a deceased person, even if an order substituting the said deceased person with a living person is made. This is because the action is void ab initio as held in GEORGE-O V. OWODIONG-I (2018) ALL FWLR (PT. 952) 110; A.B. MANU & CO. NIG. LTD V. COSTAIN (WA) LTD (1994) 8 (PT. 367); OLU OF WAARI & ORS V. ESI & ANOR (1958) VOL. 1 NSCC 87; ARAB CONTRACTOR (O.A.O) NIGEIRA LTD V. EL RAPHAEL HOSPITAL AND MATERNITY HOME INVESTMENT CO. LTD (2009) LPELR -8735 (CA); NJOKU V. U.A.C. FOODS (1999) 12 NWLR (PT. 532) 557; FAWEHINMI V. NBA (2) (1989) 2 NWLR 105; HIFLOW FARM INDUSTRY V. UNIBADAN (1993) 4 NWLR (PT. 290) 719; OBIKE INT’L V. AYI TELETRONICS SERVICE LTD (2005) ALL FWLR (PT. 256) 1349.

The Appellants reproduced the content of the Respondent’s affidavit in support of motion seeking to amend which is at 325-326 of records and also the cross examination of Respondent which was carried out by the Counsel to the Appellants(see

pages 382, 399 of Records) to state that a dead person is recognized in law as a person who ceases to have legal personality and relied on A.G. FEDERATION V. ANNP (2003) 18 NWLR (PT. 851) 182; ALHAJI AMILAFIA TRADING CORPORATION LTD V. VERITIES INSURANCE COMPANY LTD (1986) 4 NWLR (PT. 38) 802; OMOKHAFE V. ESEKHOMO (1993) LPELR-2649 (SC); KAREEM V. WEMA BANK LTD (1991) 2 NWLR (PT. 174) 485; AKUNMOJU V. MOSADOLORU (1991) 9 NWLR (PT. 214) 236); HODGE V. MARCH (1935) A.E.R 484. The Appellants also submits that the consequences of a suit instituted in the name of a non-existing person or non-juristic person, empowers the Court to decline jurisdiction to entertain the suit and strike out the suit in its entirety as held in NJOKU V. U.A.C. FOODS (supra) and they urge this Honourable to resolve this issue in favour of the Appellants.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent argued that the Appellants’ issue one is incompetent as it arose from an incompetent ground of appeal. He submitted that it is settled that a ground of appeal alleging an error or misdirection must comply with the following conditions:
a. Quote a passage in

the judgment where the misdirection or error in law is alleged to have occurred.
b. Specify the nature of the error in law or misdirection;
c. Give full substantial particulars of the alleged error or misdirection.

The Respondent contended that the Appellants’ ground one must state clearly the complaint against the judgment of the Court, it must specify by stating the page and lines of the judgment of the Court below where the error or misdirection in law occurred and general terms as held in ODUAH V. F.R.N (2012) 11 NWLR (PT. 1310) 76; LUCAS PHAMACEUTICAL CHEMIST LTD V. ROCHE (NIG) LTD (1995) 1 NWLR (PT. 369) 29. The Respondent also submitted that the Appellants failed to quote the passage in the judgment of the Court below where the error or misdirection in law occurred by quoting the pages and lines of the judgment of the Court below, the nature of the error in law or the misdirection and have equally failed to give full substantial particulars of the alleged error or misdirection as required by law. The Respondent asked: whether an issue that arises from an incompetent ground of appeal requires any legal argument thereon? The answer is certainly NO. The Respondent then urged this Court to hold so.

APPELLANTS’ REPLY BRIEF
On issue one, the Appellants submits that the Respondent only contested the validity of ground one of the Amended notice of appeal from which the issue is distilled which shows that he has conceded to the arguments of the Appellants on issue one. The Appellants states that the law is that once an adverse party and the Court is not misled as to the nature of the Appellants’ complaint, such a ground qualifies as a competent ground of appeal and the Respondent was not misled as to the nature of the Appellants’ complaint in ground one and issue one. The Appellants submits that the ground one challenges the jurisdiction of the trial Court to entertain Suit no. SHC/6/2017 and the issue of jurisdiction can be raised at anytime as stated in EDEM V. AYI (2017) 4 NWLR (PT. 1555) 171. That it is wrong reasoning to state that a ground of appeal which is challenging the jurisdiction of a Court must quote a passage in the judgment appealed against. The case of ODUAH V. FRN (SUPRA) cannot avail the Respondent.

Finally, the Appellants submits that the Respondent has failed to respond to the merit of this appeal in all the issues canvassed before the Court, in consequence, the Appellants urged this Court to dismiss the Respondent’s arguments which are in the manner of objections and to resolve all the issues in favour of the Appellants.

RESOLUTION
Upon a careful consideration of the Amended Notice of Appeal, the Record of Appeal and the briefs of respective parties in the appeal, the Court is inclined to adopt the issues formulated by the Appellants. Principal amongst the reasons is the jurisdictional issue raised by the Appellants. I shall resolve them in the order presented by the Appellants. Furthermore, the Appellants are the parties with a complaint against the judgment, it is necessary that their complaint is fully resolved.

Issue one questions the jurisdiction of the Court to entertain a suit initiated in the name of a deceased person which was later substituted by a living person. It was an admitted fact that the suit initiated on the 13/6/2017 in the name of Tarchir Waakov is Suit. No. SCH/6/2017 and was so done after the death of the said Tarchir Waakov, he was said to have

died in 2008. See page 325-326 of the Record of Appeal and the judgment too at pages 399 where the trial Judge also acknowledge the death of the said Tarchir Waakov in 2008. Before going further, the question to ask is whether a dead person can institute a suit in a Court of law? The position of the law is settled that a dead man lacks the capacity to sue and be sued, see the case of APC V INEC & ORS (2014) LPELR-24036(SC) wherein the apex Court held thus:
“The position of the law on the status of a dead person has been severally stated by this Court and other Courts. I will only cite few instances: 1. in the case of SGB Ltd. V. Braimoh (1991) 1 NWLR (pt. 108) 428 at p. 434 – D-G, it was held that: “It is settled law that a dead person ceases to exist in the eyes of the law and any cause or action pending against such a person automatically abates unless it is one that survives the person.” 2. In the case of Nzom v. Jinadu (1987) 1 NWLR (pt. 51) 533 at p. 539, this Court, per late Oputa, JSC, held inter alia: “the dissolution of legal person is analogous to the death of an ordinary human person…dead men are no longer legal persons in the eye of the law

as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be sue of.” Commenting on the above dictum, my learned brother, M. D. Muhammad, JCA (as he then was), stated that: “I unhesitatingly add that such dead man cannot equally appeal against decisions not in their favour nor can they respond in an appeal, attempting to sustain such decisions which during their lifespan, favoured them. Whether at trial in first instance Courts or on appeal, dead men lack legal existence which parties must have to give them the competence.”…see: CCB (Nig.) Plc. V. O’silvawax Int. Ltd. (1999) 7 NWLR (Pt. 609) 97 at p.103 G – H.”
Infact a similar situation arose in the case of NZOM & ANOR V JINADU (1987) LPELR-2143(SC) where Oputa, J.S.C had this to say:
“…dead men are no longer persons in the eye of the law. The personality of a human being is extinguished by his death. A dead man cannot therefore represent the family of another dead man especially when, as in this case, Patrick Nzom died 22 years before J. C. Nzom. The position is that as a Writ issued on 10/2/73 against Patrick Nzom who died in 1949, that is 21 years before the trespass complained of, the Writ is null and void.”

See also the following cases of DAIRO & ORS V. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR-42573(SC); EZENWOSU V. NGONADI (1988) LPLER-1207 (SC) and OTU V. ACB INTERNATIONAL BANK PLC & ANOR(2008) LPELR-2827(SC). Similarly, a Writ issued 13/6/2017 long after the named Plaintiff Tarchir Waakov had died in 2008 cannot be a valid writ of summons, the writ is null and void. If the writ is null and void, could there be a valid substitution of the Plaintiff? Can the living person replace a dead person? The obvious answer is No and as held in MCFOY V UAC (1961) 3 WLR 1405 AT 1409; you cannot put something on nothing and expect it to stand, it will collapse. In the case of NJOKU V U.A.C. FOODS (1999) 12 NWLR) Pt. 632) 557 at 565, the Court on the question of substituting a non-juristic person (dead person) with a living person said thusly:
“An amendment for the substitution of a non-juristic person by a juristic person is not at all feasible and must be refused. There was nothing to substitute. See Gani Fawehinmi v. NBA(2)

(1989) 2 NWLR 105 – 558; Hiflow Farm Industry v. Unibadan (1993) 4 NWLR (pt.290) 719. The dominant judicial view is that when a Court is approached with a prayer for the amendment sought by the Appellant and it refused same, it proceeds not only to strike out the name of his non-existing party but also the suit in its entirety. See Okechukwu v. B.S.A. Ndah (1967) NMLR 368.”
It is settled that once a suit is initiated in such a faulty or defective manner, it cannot be amended, it is dead on arrival and cannot also inure jurisdiction on the Court to take any step in the matter. There is no life in the suit that the Court can give cognizance to. The suit is incompetent ab initio. Competent and proper parties is a feature of jurisdiction, see GOODWILL & TRUST INVESTMENT LTD & ANOR V WITT & BUSH LTD 2011) LPELR-1333(SC) where ADEKEYE, J. S. C held:
“It is trite law that for a Court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach. The question of

proper parties is a very important issue which would affect the jurisdiction of the Court as it goes to the foundation of the suit in limine. Where proper parties are not before the Court then the Court lacks jurisdiction to hear the suit. Best Vision Central Limited v. UAC NPDC Plc. (2003) 13 NLWR pt. 838, pg. 394., Ikene v. Anakwe (2000) 8 NWLR, Pt. 669, pg. 484, Peenok Limited v. Hotel Presidential (1983) 4 NCLR pg. 122, Ehudimhen v. Musa (2000) 8 NWLR pt. 699, pg. 540.”
See also the following cases of PLATEAU STATE OF NIGERIA & ANOR V. A.G. FEDERATION & ANOR(2006) LPELR-2921 (SC); AZUOMA & ORS V. SPDC (2019) LPELR-4758 (CA) and AMADIUME & ANOR V. IBOK & ORS (2005) LPELR-5730 (CA). Therefore, proper parties also affects jurisdiction and where as in this case, there was no plaintiff, the Court lacked jurisdiction to determine the suit.

The leaned trial Judge erred in explaining that the Appellants did not object and acquiesced to the situation. This is unfortunate because that is putting the law on its head. Parties cannot acquiesce to bestow jurisdiction on a Court, see AGBULE V. WARRI REFINERY & PETROCHEMICAL CO. LTD

(2012) LPELR-20625(SC) wherein the apex Court held thus:
“…parties cannot by whatever means confer on a Court a jurisdiction it does not have. It is either the Court has the jurisdiction or it does not. Also, Court’s judgment arrived at in the absence of jurisdiction is a nullity and it is most perverse to allow such a contraption to endure. See Aladegbemi v. Fasanmade (1988) 3 NWLR (part 81) 129 and Lakanmi v. Adene (2003) 10 NWLR (part 828) 353.”Per MUHAMMAD, J.S.C
And also the case of ABUNG & ORS V. EKABOKON GLOBAL SERVICES LTD & ORS (2018) LPELR-44791 (CA) where the Court held thus:
“Undoubtedly, parties cannot by their conduct or acquiescence confer jurisdiction on the Court, where such jurisdiction is lacking. See OKOTIE – EBOH VS OKOTIE EBOH [1986] 1 NWLR [Pt. 16] 246 @ 345; DONGTOE VS CSC, PLATEAU STATE [2001] 6 NSCQR 328 @ 328; EFFIOM VS EDET [2016] LPELR – CA/C/237/2014 @ 16 paragraphs A – B. In IJEBU – ODE LOCAL GOVERNMENT VS ADEDEJI BALOGUN & CO. LTD., the Apex Court aptly held: Parties cannot by their conduct vest jurisdiction in the Court where none exists. Hence, the conduct of the Appellant in approbating the

exercise of jurisdiction where none existed cannot constitute an estoppels. See [1991] LPELR – 1463 [SC], per Karibi-Whyte, JSC, @ 27 paragraphs B- E. The significance of the above doctrine is that the issue of lack of jurisdiction can be raised at any stage of the proceedings, by the parties or even suo motu by the Court [trial or appellate]. This is absolutely so, because where the objection or issue challenging jurisdiction is upheld, it fundamentally terminates and disposes of the matter in limine without the need of further proceedings. See IJEBU-ODE LOCAL GOVT. VS ADEDEJI [supra] @ 27; EBHODAGHE VS OKOYE [2004] 18 NWLR [Pt. 905] 472; [2004] LPELR @ 29 – 30 F – C.” Per SAULAWA, J.C.A
Further support in the following cases ONWUDIWE V. FRN (2006) LPELR-2715 (SC); ADEYEMI V. STATE (1991) LPELR-172(SC) and NNONYE V. ANYICHIE & ORS (2005) LPELR-2061(SC).
The issue of jurisdiction is fundamental and goes beyond a party waiving its right of protest. The importance of jurisdiction was reiterated in the case of IKPEKPE V. WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR-44471 (SC) wherein the apex Court held thus:

“The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted. See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675.” Per OKORO, J.S.C
And the case of PETROJESSICA ENTERPRISES LTD & ANOR V. LEVENTIS TECHNICAL CO. LTD (1992) LPELR-2915(SC) wherein the

apex Court held thus:
“Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The Federal High Court’s jurisdiction is clearly set out in S. 7 of the Federal High Court Act (Cap. 134 Laws of Federation of Nigeria, 1990) and that Court cannot arrogate to itself a jurisdiction it has not gotten. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. (Osadebay v. A-G., Bendel State (1991) 1 N.W.L.R (Pt. 169) 525; Owoniboys Tech. Services Ltd. v. John Holt Ltd. (1991) 6 N.W.L.R (Pt. 199) 550; Okesuji v. Lawal (1991) 1 N.W.L.R (Pt. 170) 661; Katto v. Central Bank of Nigeria (1991) 9 N.W.L.R (Pt. 214) 126; Utih v. Onoyivwe (1991) 1 N.W.L.R (Pt. 166) 166).” Per BELGORE, J.S.C.

See also the following cases of KURMA V. SAUWA (2018) LPELR-4631 (SC) and ARUEZE & ORS V. NWAUKONI (2018) LPELR-46352(SC).
The right of a party to challenge the jurisdiction of a Court cannot be waived and once a Court lacks jurisdiction the suit must be struck out because, any step taken or proceedings conducted is a waste of time and a nullity. The trial Judge should have upon the realization that the Plaintiff had died before the Writ was issued, raised the issue suo motu and called on parties to address him before striking out the suit, instead, he was fishing for reasons to proceed and entered a judgment that is dead and is of no value, waste of judicial time.

The Respondent instead of reacting to the question of jurisdiction, he went on to argue that the issue was formulated from an incompetent ground because the ground did not quote from the judgment appealed against. I had resolved the competence of the said ground, it is a challenge to jurisdiction which could be raised orally, see BUREMOH V. AKANDE (2017) LPELR-41565 (SC) where Per KEKERE-EKUN,

J.S.C has this to say:
“The settled position of the law is that the issue of Jurisdiction, being so fundamental to the Court’s power to adjudicate, can be raised at any stage of the proceedings, even before this Court. It can be raised orally. It can also be raised suo motu by the Court. This is because, no matter how well the proceedings are conducted or how erudite the judgment arising therefrom, it all amounts to a nullity where the Court lacks jurisdiction. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 587; Nnakwe Vs The State (2013) 7 SCNJ 179; Oloriegbe Vs Omotesho (1993) 1 SCNJ 30.”
And the apex Court in the case of SALISU & ANOR V. MOBOLAJI & ORS (2013) LPELR-22019 (SC) held:
“It is not out of place to stress that the issue of jurisdiction is a threshold one which this Court, in Elugbe v. Omokhafe (2004) 11-12 SC 60, has held must not be treated lightly. The point has repeatedly been made that no matter how well proceedings were conducted by a Court the proceedings would come to naught and remain a nullity if same were embarked upon without jurisdiction. This explains the principle of law which allows the issue of jurisdiction to be

raised orally and even for the first time in this Court. See Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 6 SC (part 11) 1; Katto v. CBN (1991) 11-12 SC 176; Oloriode v. Oyebi (1984) 5 SC 1; Ezomo v. Oyakhire (1985) 2 SC 260 at 282 and Lado & 43 others v. CPC & 53 Ors (2011) 12 SC (part 111) 113.” Per MUHAMMAD, J.S.C.

The issue is therefore competent for resolution and the second challenge to the issue is over ruled and discountenanced.

The judgment in this case is a nullity, the Court lacked jurisdiction and issue one is resolved in favour of the Appellants and the judgment appealed against is set aside and the suit initiated as Suit No.: SHC/6/2017 is hereby struck out.

Ikechukwu v. FRN (2015) NWLR (pt. 1457) 1 at 21, Nweze, JSC, incisively, declared: It cannot be gainsaid that, as a general rule, an intermediate Court, like the lower Court, (Court of Appeal) has a duty to pronounce on all the issues before it…. However, there are some exceptions to the above rule that applies to the lower Court, as an intermediate Court. Thus, for example, where the said Court, as an intermediate Court, decided that it lacks jurisdiction in an appeal before it, it, then becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction… See also, Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80. Where the jurisdiction of a Court to hear a matter is undermined, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd.(2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra);

Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481.”
See also IKECHUKWU V. FRN (2015) NWLR (PT. 1457) 1 AT 21 and SHASI & ANOR V SMITH & ORS (2009) LPELR-3039(SC) where the same principle was reiterated and the exception recognized; it held thus:
“As a matter of fact and law this is the final Court and one of its attributes arising from this privileged position is the power of deciding an appeal before it even on resolving one issue which is decisive amongst other issues submitted before it for adjudication. This may not be the case with regard to the intermediate lower Courts excepting if within the narrow exceptions as contemplated in the cases of F.C.D.A. V. SULE (supra) that is, where it is decided that the Court lacks jurisdiction in the matter before the Court it then becomes unnecessary to consider other issues once a decision has been taken on the issue of jurisdiction, also See: ORO V. FALADE (Supra) and IFEANYI CHUKWU (OSONDU) LTD. V. SOLEH BOUSH LTD. (2000) 5 NWLR (Pt. 656) 322 at 352; and

again, as rightly pointed out by this Court in SAPARA VS. U.C.H. BOARD (1988) 4 NWLR (Pt.56) 58 at 61 to the effect that an appellant before an appellate Court has a constitutional right to a determination by that Court of all the issues submitted to it.” Per CHUKWUMA-ENEH, J.S.C.

Having found that the trial Court lacked jurisdiction and consequently this Court too, the suit is struck out as earlier held.
The Court must also pronounce on the Counterclaim which is generally considered as a separate claim, see OROJA & ORS V. ADENIYI & ORS (2017) LPELR-41985 (SC) wherein the apex Court held thus:
“…a counter claim is always considered as an independent, separate and distinct claim which a Court must always consider. A trial Court confronted in a suit with both the main and counterclaims, must give separate judgment on each of the claims as each of such claim is independent of one another in this instant case.” Per SANUSI, J.S.C
And the case of NSEFIK & ORS V. MUNA & ORS (2013) LPELR-21862 (SC) wherein the apex Court held:
“It is also relevant to observe that a counter claim is a distinct action in its own right even

though made a part of the main claim. It would not fall for consideration until the main claim has been determined. A separate decision would be given in respect of the counter claim. Jeric (Nig.) Ltd. v. U.B.N. Plc (2000) 12 SC (pt. II) 133; Obimiami Brick & Stone Nig. Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt. 229) 260. After all, at the conclusion of the main trial the counter claimant is at liberty to abandon his counter claim, if he so desires.” Per KEKERE-EKUN, J.S.C
See the following cases OKONKWO V. COOPERATIVE & COMMERCE BANK (NIG) PLC & ORS (2003) LPELR-2484 (SC) and BELOXXI & CO. LTD V. SOUTH TRUST BANK & ORS (2012) LPELR-8021(CA).

Ordinarily, if the claim of the Plaintiffs were dismissed for other reasons, the Counterclaim would ordinarily have survived but the situation in this case is peculiar and the defect to the main suit must impact negatively on the Counterclaim because there is no Defendant to the Counterclaim. There was no competent Plaintiff in the main claim from the onset and he could not have been validly substituted to defend the Counterclaim, that means there was no Defendant to Counterclaim and no claim

can survive without a Defendant, see the case of AKINDELE V ABIODUN (2008) LPELR-8557(CA) which explained the import of a Defendant and the necessity of a valid Defendant to a claim, it said:
“It is rudimentary that the word “defendant” means a person sued in a civil proceeding or accused in a criminal proceeding – I refer to the Black’s Law Dictionary, Eighth Edition at pages 450 to 451 where the word “defendant’ was so defined. Put in other words, it can be said that a defendant is the title given to or the status of a person sued whether natural or juristic. A “defendant” is a person who in law or fact is qualified, capable and has the ability to be called upon to reasons why the plaintiff or prosecutor (that is, the person who institutes an action) should not have a valid case and should not recover or establish that Which he seeks by his complaint or petition. A party is further defined “inter alia” in the Black’s Law Dictionary as one by or against whom a lawsuit is brought. By simple logical deduction, a party can either be a plaintiff or defendant whether composed of one or more individuals and Whether natural or legal persons. Put differently, a

person who takes part in a legal transaction or proceeding is said to be a party to it or a person whose name is designated on record as a plaintiff or defendant. It refers to a person by or against whom a legal suit is brought, whether in law or in equity. See: Obingwa LG vs. Muoma (2001) 18 NWLR (pt. 744) p. 71.”
In the light of above, the counterclaim must also be struck out for not having a Defendant.

The appeal succeeds on the issue of lack of jurisdiction. The suit before the Court below with Suit No.: SCH/6/2017 is hereby struck out.
No order as to cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in draft the erudite judgment of my learned brother, HON. JUSTICE YARGATA BYENCHIT NIMPAR, JCA. I adopt all the well-considered reasoning and conclusion on the several authorities cited from both the Apex Court and this Court and I agree that, since the Appellants’ suit was commenced in the name of a dead person, the suit was dead on arrival and the learned trial Judge was wrong to have held that he had the jurisdiction to entertain same.

In the same vein: I agree that the same fate ought to have befallen the Counter-Claimant who claimed against the dead Plaintiff such that the Court below ought to have struck out both the Appellant’s suit and the Counter-Claim for want of jurisdiction.

The Lower Court having failed so to do. I agree completely with my learned brother that this Appeal is meritorious and hereby succeeds. The judgment of the Lower Court is set aside and the Claim and Counter-Claim of the Parties (Respondent and Appellants) are hereby struck out for want of jurisdiction.
I also abide by the Order as to costs

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in advance a copy of the lead judgment just delivered by my learned Brother Yargata Byenchit Nimpar, JCA. I agree with the reasoning and conclusion reached therein, and I abide by the consequential orders so made in the judgment.

Appearances:

A.I. WOMBO WITH HIM, T.T. SHACIA For Appellant(s)

P.D. ADI For Respondent(s)