ALH. GANIYU AKANDE v. ADEPOJU ODUNEWU & ORS
(2015)LCN/7800(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of March, 2015
CA/I/193/2006
RATIO
PRACTICE AND PROCEDURE: ENTERING AN APPEARANCE; THE IMPLICATION OF ENTERING AN APPEARANCE BY THE DEFENDANT
By entering an appearance, a defendant indicates that he intends to defend the action. He also thereby submits to the jurisdiction of the court.
By entering an appearance a defendant signifies to the plaintiff that the writ or other originating process has been received and that the action may be defended. He also thereby signifies the address for service of his solicitor. – So a defendant may enter an unconditional appearances or a conditional appearance. – see Generally Civil Procedure in Nigeria Fidelis Nwadialo 241. See also Dike vs. Union Bank (1987) 4 NWLR 958 at 962. per. NONYEREM OKORONKWO, J.C.A.
PRACTICE AND PROCEDURE: ANNOUNCING APPEARANCE; THE IMPLICATION OF A COUNSEL ANNOUNCING HIS APPEARANCE IN A CASE
The authority given by respondents counsel at page 2 of his brief is very apposite. It is Ikeanyi vs. ACB (1991) 7 NWLR (pt.295) 626 at 641. Where an earlier dicta by Oputa JSC in Adewumi vs. Plastek (1986) 3 NWLR (Pt.32) at 767 to the effect that:
“Once a counsel appears in court in a case and announces his appearance the court assumes he has authority of his client for the conduct of the case – – – it is not for the court to start an inquiry into his authority and the court never does”. Was quoted approvingly. per. NONYEREM OKORONKWO, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
ALH. GANIYU AKANDE Appellant(s)
AND
1. ADEPOJU ODUNEWU
2. BASIRU ISOLA
3. ADEOTI ODUNEWU Respondent(s)
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The appeal herein, arose from the judgment of the Oyo State High Court delivered on 14th April, 2003 whereby declaration of title to the land in dispute and ancillary reliefs were granted in favour of the respondent against the appellants.
The facts of the case as could be gleaned from the pleadings and evidence of the respondent were as follows:-
Sometime in 1977, the respondent was introduced to the 1st, 2nd and 3rd appellants by PW1 as a family who wanted to sell their land at Odunewu village along Ologun-Eru Road, Yankuna Road, Eleiyele Ibadan and desired the respondent to purchase the land.
The respondents agreed. When the family as represented by 1st, 2nd and 3rd respondents and defendant met with the respondents and a price of N10,000 was agreed upon for the five acres of land offered for sale. The respondent engaged a lawyer who prepared a deed of sale. The respondent and the appellants executed the agreement Exhibit PB in the office of the lawyer Barrister R. A. Ogunwole and in the presence of witnesses namely PW2 and PW3. Respondent then took possession of the land and farmed on part thereof through PW3.
Sometime later, the respondent discovered that his vendors, the appellants had sold some portions of the land to a stranger. Respondent reported appellants to the police who arrested appellants but granted them bail. Appellants disappeared thereafter from their village. Respondent as plaintiff then sued the appellants at the High Court at Ibadan.
Because appellants were evading service of the writs, at the instance of the respondent, the court made an order for the processes to be served by pasting on the walls of the appellants’ house in their village Odunewu. Upon service of the writs as prescribed, the appellants namely (1) Adepoju Ishola Odunewu (2) Basiru Ajagbe Odunewu and Madam Adeoti Odunewu, through their lawyer Yemi Ajayi Esq., entered appearance to the suit and subsequently filed a statement of defence through the same Yemi Ajayi of counsel. The same Yemi Ajayi filed and argued on behalf of the 1st – 3rd defendants a notice of Preliminary Objection to the competence of the suit which was heard and dismissed. At the hearing of the suit, a lawyer, Adeleke Bakare appeared for the defendants and cross examined the witnesses for the respondent.
At the conclusion of the evidence, the trial judge believed and accepted the evidence of the respondent and his witnesses and decreed declaration of title in favour of the respondent on 14th April, 2003.
The appellants being dissatisfied filed a notice of appeal dated 7/7/05 and filed 12/7/05 whereby the following sole ground of appeal was filed to wit;
GROUNDS OF APPEAL:
The learned trial judge lacks jurisdiction to entertain the suit.
PARTICULARS OF ERRORS:
(a) The suit was instituted against a dead person. The 1st defendant died in 1973,
(b) There is no person in Odunewu family bearing the name “Adeoti”.
(c) The suit is not properly before the court,
(ii) The learned trial judge erred in law by setting the sale agreement executed by Odunewu family in favour of third parties aside.
PARTICULARS OF ERROR: The court has no right to set the sale agreement aside since the plaintiff/respondent is not a party to the agreement.
Additional Grounds will be filed on the receipt of the record of proceedings.
From this ground of appeal, the appellant raised two issues for determination namely:
3.01 Whether the court has jurisdiction to entertain the action when it was not properly brought before it.
3.02 Whether the court was right in setting aside the Sale Agreement to which the plaintiff/respondent was not a party.
Arguing issue no.1, A. O. Bada of counsel for the appellant at paragraph 4.03 of his appellants’ brief argued thus:
In the instant case, the plaintiff sued the 1st defendant, a dead person for a trespass alleged to be committed twenty-six years after his death.
The 1st defendant died in 1973 and the trespass, according to the plaintiff, was committed in 1999.
Counsel went ahead to argue that where a person sued is not a legal person by reason that the one being a natural person has died, such action is liable to be struck out as incompetent relying on Shittu vs. Ligali (1941) 16 NLR 21; Agboagbe Bank Ltd G. B. Olivant Ld & Anor. (1961) All NLR 116 and Isom vs. Jinadu (1986) 4 NWLR (Pt.51) 533.
“In the instant cases”, appellant’s counsel submits “the plaintiff sued the 1st defendant a dead person for trespass alleged to be committed twenty-six years after his death. The 1st defendant died in 1973 and the trespass, was committed in 1999”.
On the second issue, the appellants seem to contend that it was not competent for the respondent as plaintiff to sue for the setting aside of a land agreement made with a third party, the respondent neither being a member of the family nor privy to the agreement.
Appellant’s submission runs thus:-
“It is the cardinal principle of law that only a member of a family can ask for the setting aside of a Sale Agreement in respect of the family, made by members of such family and not an outsider. This is an exception to the principle that only a party to a deed can ask for the setting aside of such a Deed.”
(i) Foko vs. Foko (1968) NMLR 441.
(ii) Olanipekun vs. Ayinla (1975) 1 WACA 29.
(iii) Onika vs. Akingbelure (1963) WNLR 15
(iv) Baba Agba Gegele vs. Alhaji Mohammed Layinka & Or. (1993) SCNJ 390 at 44 – 45.
(v) Emmanuel Babayeju vs. Chief O. Ashami & 1 Or. (1998) 7 SCNJ 158 at 168.
The respondents in reacting to the novel facts about the 1st defendant having died in 1973 long before the action was instituted stated thus at para 2:01, 2:02 and 2:03 of the respondents’ brief thus:
2:01 After the claim was filed, the plaintiff served the processes by substitution and consequently, the defendants entered appearance through MR. YEMI AJAYI ESQ. the Memorandum of Appearance is at page 8 of the record. It is important to note that appearance was entered for the 1st, 2nd and 3rd defendants.
2:02 Nowhere or at no time did the counsel make it known to the court that any defendant was dead. The counsel even went ahead and filed a defence after several preliminary objections had been disposed off. The Statement of Defence is at pages 58-59.
2:03 In the Statement of Defence filed, the defendants did not raise any issue of any dead person nor did they deny knowledge of any of the defendant. In actual fact the defence filed was silent on both points and the counsel who appeared on their behalf did not raise any such issues. It was on the basis of this that the case was fought in the Lower Court.
The respondent, it seems to me, adopted the issues raised by the appellant.
In arguing the 1st issue the respondent argued thus at paragraph 4:02 of the respondents’ brief
(A) Where the Plaintiff served court processes on the defendant through substitution, a Memorandum of Appearance was filed on behalf of the 1st – 3rd Defendants through their counsel MR. YEMI AJAYI. The Memorandum of Appearance is at page 8 of the record. Submit that if there had been any death or writing party sued, this should have been stated by the Defendants counsel by either entering a conditional appearance or not entering appearance for the party not known. Since this was not done, it is obvious that the claim now being made is an afterthought.
(B) The counsel that appeared throughout the trial never mentioned that one of his clients was dead or that they had no knowledge of the 3rd defendant. Having not raised such objections, we submit that the defendants are now estopped from raising such an issue. In actual fact, it amounts to raising a new issue on appeal without leave. This we submit cannot be done: LSDPC vs. FOREIGN FINANCE (1987) 1 NWLR (PT.50) 413.
See: Kosile vs. Folarin (1989) 3 NWLR (Pt 107) at 9
Furthermore, it is clear that counsel who appeared throughout the case must have had the authority of his clients to do so.
See: Ikeayin vs. ACB (1991) 7 NWLR (Pt.205) 626 at 6441 where the court held and followed Oputa JSC in Adewumi vs. Plastek (1986) 3 NWLR (Pt.32) at 767 as follows “Once a counsel appears in court in a case and announces his appearance the court assumes he has authority of his client for the conduct of the case…it is not for the court to start an inquiry into his authority and the court never does”.
On the second issue of the appellant that it was not competent to set aside a sale agreement that the respondent was not privy to, the argument of the respondent can simply be summarized thus:-
The case of the respondent related to establishing the title of the respondent to the land in dispute and the respondent having by credible evidence established his title to the land in dispute as against the defendant; the court was obliged, to set aside any apparent inconsistent claim to title to the same land found to belong to the respondent including the purported sale to the 4th defendant for which counsel relied on the authorities of Ogunleye vs. Oni (1990) 2 NWLR (Pt.135) 745 Dantosho vs. Mohammed (2007) FWLR (Pt.150) 720. The arguments raised in this appeal appear to have been sufficiently dealt with in paragraphs 4.02 of the respondent’s brief reproduced earlier.
In the suits, 1st – 3rd defendants, the main defence parties in this case were sued. They were served in the manner prescribed by court. Upon service, Counsel Mr. Yemi Ajayi acting within his apparent authority entered appearance for 1st – 3rd defendants without any exemption. The said counsel took part in proceedings appearing for all defendants. At the hearing, sometime Yemi Ajayi would attend court and at another time, Adeleke Bakare appeared for the defendants. No mention was ever made of the 1st defendant being dead or having died before the suit was instituted. The trial judge proceeded on the basis that all 1st – 3rd defendant were before him through their counsel and on that basis conducted the case up till judgment. What then does it mean for counsel to enter appearance for a defendant sued in a civil suit?
By entering an appearance, a defendant indicates that he intends to defend the action. He also thereby submits to the jurisdiction of the court.
By entering an appearance a defendant signifies to the plaintiff that the writ or other originating process has been received and that the action may be defended. He also thereby signifies the address for service of his solicitor. – So a defendant may enter an unconditional appearances or a conditional appearance. – see Generally Civil Procedure in Nigeria Fidelis Nwadialo 241. See also Dike vs. Union Bank (1987) 4 NWLR 958 at 962.
In this case, the appearance entered by the 1st, 2nd and 3rd defendant through their lawyer Mr. Yemi Ajayi at page 28 of the record is unconditional. In addition to what has been said above, entry of appearance unconditionally signifies that the defendant accepts or concedes any irregularity on the writ or the service of it and will proceed with the proceedings upon the writ. It is a complete submission to jurisdiction. In the absence of any jurisdictional issue as in Attorney General Eastern Nigeria vs. Attorney General of the Federation (1964) 1 All NLR 224, such submission to jurisdiction cannot be retracted from.
The authority given by respondents counsel at page 2 of his brief is very apposite. It is Ikeanyi vs. ACB (1991) 7 NWLR (pt.295) 626 at 641. Where an earlier dicta by Oputa JSC in Adewumi vs. Plastek (1986) 3 NWLR (Pt.32) at 767 to the effect that:
“Once a counsel appears in court in a case and announces his appearance the court assumes he has authority of his client for the conduct of the case – – – it is not for the court to start an inquiry into his authority and the court never does”. Was quoted approvingly.
What then is the apparent authority of counsel in a case? To what extent does it bind his client? In Nwafor Elike vs. Ihemereme Nwankwoala (1984) 12 SC.301.
It was indicated that once instructed, counsel ought to have complete control over how the clients instructions are carried out and over the actual conduct of the case. Specifically it was held thus”
“Subject always to the authority of a client to countermand the general authority of counsel or to withdraw or amend his instruction during the course of proceedings or even dismisses his counsel, counsel has full authority and control over the conduct of the case for which he is briefed, and to bind the client in the proceedings” Elike vs. Nwankwoala 1984 All NLR 505. See also Halsbury’s Laws of England, Vol. 3 Para. 1180.
The issue of the 1st defendant not being alive at the time of the institution of the suit was never raised at any time in the proceedings in the Lower Court. On the contrary, 1st, 2nd and 3rd defendants entered appearance, filed preliminary objections to suit and generally participated in the proceedings up to judgment only to turn around at the appeal stage to allege that 1st defendant was dead even before the suit was commenced.
This in my view is most ludicrous and is obviously an afterthought.
On the whole, the two issues raised in the issues for determination are, each without any merit and the appeal is accordingly dismissed.
MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother Nonyerem Okoronkwo JCA dismissing this appeal.
The alleged death and non-existence respectively of the 1st and 2nd Appellants amount to raising fresh issues on appeal without leave – or at best belated afterthought. After the joint service of all the Defendants at the trial court by substituted means, one Yemi Ajayi appeared in Court as Counsel for the Appellant. At no time was the issue of death or nonexistence raised before the trial Court.
Further, the facts of the case do not align with this new found claim of the Appellant in that, how is it possible that a man who died in 1973, or a nonexistent member of the Appellants family was signatory to a land sale agreement in 1977, which the Appellants have so far not denied? This same Appellant was recorded as being present at the court proceedings of 9th December, 1999. The Appellants have neither denied the existence of the 2nd Appellant, nor have they denied selling the land in dispute to the Respondent. The case of Omoregbe vs. Lawal 1980 3-4 SC pg.109, clearly explains this point wherein it was stated per Idigbe J.S.C. that:
“Where evidence given by a party to any proceedings is not challenged by the opposing party who had the opportunity to do so, it is always open to the court seized of the proceedings to act on the unchallenged evidence before it”.
I adopt the consequential order made in the lead judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my brother Nonyerem Okoronkwo, JCA.
He has dealt exhaustively with the issues in the appeal. I however have a few words to add. The issue of death of a party rearing its head as a ground of appeal in this court is known to the deceased party’s counsel even before the case proceeded to trial. Where an originating process is issued against a deceased party, his counsel has a sacred duty to promptly notify the court. If he kept mute on the issue and allow proceeding to progress then one can read some element of mischief and dishonesty on the part of the counsel representing such deceased party. Such counsel in my humble view has abdicated from discharging the duty placed on him professionally. Where it is known to a counsel that one of the parties he is representing is late, he has some options open to him. He can either enter a conditional appearance or raise promptly a preliminary objection to the issuance of a writ against such deceased party. The entry of a conditional appearance is an appearance under protest and usually means an appearance to object to court’s jurisdiction over such deceased-party. See Emeka v. Okadigbo & 4 Ors (2012) 7 SC (Pt.1) 1, Adegoke Motors v. Adesanya (1989) 5 SC 113 and Alhaji Dahiru Saudi v. Alhaji Halliru Abdullahi (1989) 7 SC (Pt.11) 116.
In a situation of this nature it provides the remedy of substitution if need be in such (personal) cases. This is governed by the application of the maxim: “action personlis morritura um persona” a personal right of action dies with person meaning that an action based on the personal right of a deceased person dies with the person. See Chief J. P. Oyeyemi v. Commissioner for Local Government Kwara State & Ors (1991 – 1992) ALL NLR 479.
In the light of the foregoing, I also hold that the two grounds are not only products of an afterthought but grossly immersed in mischief and dishonesty.
The appeal lacks merit and same be and is hereby dismissed.
Appearances
Oladipo Olasope Esq.For Appellant
AND
A. O. Bada Esq.For Respondent
