DIAMOND HOTEL LIMITED & ANOR v. MRS MABEL OBIKOYA
(2018)LCN/12442(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of May, 2018
CA/L/801/2016(R)
RATIO
APPEAL: WHERE A PRELIMINARY OBJECTION IS RAISED
“The law is firmly settled that where in a suit or an appeal, a preliminary objection is raised, the Court must hear and determine the preliminary objection before proceeding to deal with the main suit or the appeal, and where the determination of the preliminary objection effectively and effectually brings the suit or appeal to the end, it follows that the necessity to delve into the substantive suit or appeal becomes obviated, See: ALLANAH Vs. KPOLOKWU (2016) LPELR-40724 (SC) Pg.10-11, Paras. D – A and MUSA & ANOR Vs. IBRAHIM (2017) LPELR-43101 (CA) Pg.5, Paras. A – D.” PER TIJJANI ABUBAKAR, J.C.A.
JURISDICTION: PROPER PARTIES IS NEEDED FOR A COURT TO HAVE PROPER JURISDICTION
“The law is well settled beyond any controversy that the jurisdiction of a Court is activated by the presence of proper parties amongst other factors. Where the proper parties are not before the Court, the Court will not be competent to adjudicate on the matter before it, for a Court to assume jurisdiction, parties must be properly constituted. See: AMADI Vs. FRN [2008] 12 SC (Pt.III) 55; (2008) LPELR-441 (SC) Pg. 12-13, Paras. D – C and OKONTA Vs. PHILIPS & ORS [2010] 18 NWLR (Pt.1225) 320 SC; (2010) LPELR-1373 (SC) ps. 5, paras. C-D where the Supreme Court held that ‘…it is only when proper parties are before the Court which makes the Court competent to adjudicate on the suit.'” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. DIAMOND HOTEL LIMITED
2. MR. A. OLA OLAWUNMI Appellant(s)
AND
MRS MABEL OBIKOYA
(Suing as Beneficiary of the Estate of Chief Albert O. Obikoya) Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Lead Ruling):
This is a Motion on Notice brought by the Appellants/Applicants pursuant to Order 6 Rule 15, Order 7 Rule 1 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this Court, the application was filed on the 29th day of August, 2016. In the Application, The Appellants/Applicants are praying for the following reliefs:
1. AN ORDER of this Honorable Court granting leave to the Applicants to amend its Notice of Appeal dated May 3rd, 2016 against the Ruling of the High Court of Lagos State Coram Emeyo J. delivered on April 21st 2016 (201416 Ruling) in the manner shown in the Schedule of Amendment attached hereto as Exhibit MAG 1. [Sic]
2. AN ORDER of this Honouroble Court extending the time within which the Applicants may seek leave to appeal against the decision of the Lower Court on grounds of facts and/or mixed law and facts contained in Grounds 2, 3 and 4 of the Proposed Amended Notice of Appeal annexed as Exhibit MAG 2.
3. AN ORDER granting leave to the Appellants to appeal against the decision of the Lower Court on grounds of facts and/or mixed law and facts contained in Grounds 2, 3 and 4 of the Proposed Amended Notice of Appeal.
4. AN ORDER of this Honourable Court extending the time within which the Applicants may appeal against the decision of the Lower Court as contained in Grounds 4, 5 and 6 of the Amended Notice of Appeal.
5. AN ORDER granting time to the Applicants to file and serve Amended Notice of Appeal.
6. AN ORDER of extending the time within which the Applicants may file their Brief of Argument in this appeal.
7. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance of this case.
The grounds for the application are also set out as follows:
I. The High Court of Lagos State Coram Emeyo J, on May 21st 2016 delivered its Ruling (210416 Ruling) wherein the trial Court dismissed the Preliminary Objection (PO) dated October 14th 2014 brought by the Applicants.
II. Dissatisfied with the said 210416 Ruling, the Applicants herein promptly filed a Notice of Appeal dated May 3rd, 2016 (030516 NOA) before this Honorable Court challenging the trial Courts 210416 Ruling.
III. At the time of filing the said 030516 NOA, the 210416 Ruling had not been made available to the Applicants nor had the records been settled at the said time.
IV. The 210416 Ruling of the Lower Court was made available to the Applicants on May 13th 2016.
V. Upon obtaining the 210416 Ruling, Osito Mbomalu of Counsel Magna Konsults Counsel to the Applicants upon review of same saw the need to amend the said 030516 NOA to incorporate additional grounds to properly bring before this Honorable Court all the material grounds and issues for a just, complete and effectual determination of the Appeal.
VI. The Applicants consequently included grounds which are based on facts and/or mixed law and facts and as such, the leave of this Honorable Court become imperative to make such grounds competent.
VII. The instant application for amendment of the Applicants Notice of appeal is to bring the new grounds to the attention of the Court and drop the one that is unnecessary so as to assist this Court in the just and effective determination of this Appeal.
VIII. The time limited by the Rules of this Court for the Applicants to file their Appellants brief of argument has expired.
IX. The delay in filing the Appellants brief is due to the need to file an Appellants brief that would be based on the Amended Notice and grounds of Appeal which reflects the complaints of the Appellants against the 210416 Ruling of the Lower Court.
X. The proposed Appellants brief is now ready and attached herewith as MAG3.
Applicant’s Motion is supported by an 11 paragraph Affidavit deposed to by one Cyprian Onumaegbu on the 29th of August, 2016. Attached to the Affidavit is a Schedule of Amendment marked as Exhibit MAG 1; Proposed Amended Notice of Appeal marked as Exhibit MAG 2; and an Appellants’ Brief marked as Exhibit MAG 3. The Appellants/Applicants also filed a 7 paragraph Further Affidavit in support of their Motion deposed to by same Cyprian Onumaegbu on the 5th of May, 2017. Attached to the Further Affidavit is the Certificated True Copy of the Ruling of the Lower Court delivered on the 21st day of April, 2016 which is marked as Exhibit MAG 4. The Appellants/Applicants’ Written Address in support of the Motion is dated 22nd May, 2017 and filed by learned counsel on the 23rd of May, 2017.
The Respondent in opposition to the Appellants/Applicants ‘Motion filed 8 paragraph Counter-Affidavit deposed to by one Martins Oyigbo not specifically dated in January, 2017 but filed on the 20th day of April, 2017. Learned counsel for the Respondent on the 19th day of June, 2017 filed a Written Address in support of the Counter-Affidavit in opposition to the Appellants/Applicants’ Motion. Learned Counsel for the Respondent also filed a Notice of Preliminary Objection on the same 20th day of April, 2017 and a Written Address in support of the Notice of Preliminary objection was filed on the 24th day of May, 2011. In response, the Appellants/Applicants on the 1st of June, 2017 filed a Written Address in opposition to the Preliminary Objection filed by the Respondent. The sole issue distilled for determination by the learned counsel for the Appellants/Applicants in the Written Address in support of the motion on notice is:
“Whether considering the circumstances of this case, the Applicants are entitled to a grant of the reliefs endorsed on the face of their motion paper”.
Learned Counsel for the Respondent equally distilled a sole issue for determination in the Written Address filed in opposition to the Appellants/Applicants’ Motion, the issue is reproduced as follows:
“Whether filing of an appeal in the name of a dead party is a mere irregularity; that is to say, whether an appeal lodged on behalf of deceased person is a valid notice of appeal?”
PRELIMINARY OBJECTION
Before considering the aforementioned issues for determination by the parties, it is important for this Court to consider the preliminary objection raised by the Respondent to the hearing and determination of this motion, the law is fully settled that where preliminary objection is raised it must be resolved first, in keeping with this established and settled position of the law I will consider the preliminary objection first. If it succeeds proceeding to consider the substantive application on the merit may be obviated.
The Respondent’s grounds for the objection are that:
a) The appeal was filed by and on behalf of the dead party, the knowledge of whose death was/is since known to the Appellants solicitors prior to the filing of the present appeal.
b) The dead cannot in law file an appeal, let alone valid appeal.
c) That upon the death, the dead is divested of right to file a valid appeal in his personal name.
d) An appeal filed by the dead is grossly defective and incurably bad.
e) The appeal was against the interlocutory ruling of the Court below
f) The appeal contained grounds of mixed law and facts.
g) Leave of the Court must be sought and obtained before filing of the appeal
h) The appeal was filed without the said leave of the Court first sought and obtained.
i) That the Honorable Court is eminently empowered by the Rules of the Court to not only dismiss but also strike off the hearing list incurably bad appeal.
j) That it is in the interest of justice to grant this application so as to save the precious judicial time of the Honourable Court as well as the cost and resources of the parties respectively.
In sum the grounds are simply that an appeal cannot be filed by a dead party and that being an interlocutory appeal on grounds of mixed law and facts leave of Court is a precondition.
In the Written Address in support of the Notice of Preliminary Objection, learned counsel for the Respondent submitted the following issue to be resolved, the issue reads as follows:
“Whether the Appellant’s Notice of Appeal filed by and/or on behalf of dead party on the 3rd day of May, 2016 which it seeks to amend is competent and indeed the entire Appellant’s applications?”
Learned counsel for the Respondent referred to Order 15, Rules 1 & 3 of the Court of Appeal Rules, 2011; the decision in APC Vs. INEC [2015] 8 NWLR (Pt.1452) SC Pg. 531 at 597-503 and argued that the Appellants’ applicant’s counsel is aware of the death of the 2nd Appellant and yet filed an appeal on behalf of the dead party. Learned Counsel further contended that the Appellant failed to seek for and obtain the leave of the Lower Court or that of this Court before filing the Notice of appeal which contains grounds of mixed law and facts and not purely grounds of law.
Learned counsel further relied on Section 242(1) of the Constitution of the Federal Republic of Nigeria (as amended); ADEJUMO vs. AGUMAGU [2015] 12 NWLR (Pt.147) CA pg.1 at 29, paras. A – F and GARUBA Vs. OMOKHODION [2011] 15 NWLR (Pt.1269) SC pg. 145 at 19, 36 (CA) to urge this Court to strike out the Notice of Appeal dated 3rd May, 2016 for failure to comply with the statutory and constitutional requirements of obtaining leave which cannot be waived or glossed over. Counsel relied on APC vs. INEC (Supra) and UAC vs. MACFOY (1961) 3 WLR 1405 at 1409 to submit that an incompetent process filed by or on behalf of a dead party is void ab initio and cannot be amended.
Learned counsel submitted that this Court lacks jurisdiction to entertain and grant the prayers sought by the Appellants/Applicants in all their applications. Counsel referred to ONOCHIE Vs. ODOGWU [2006] 10 NWLR (Pt.975) SC pg. 55 at 79, paras. A – B and submitted that there is no competent appeal before this Court and that the jurisdiction of this Court has not been activated. Learned counsel therefore urged this Court to dismiss the Application of the Appellants with substantial cost in favor of the Respondent and make an order for the accelerated hearing of the suit at the Lower Court.
Learned counsel for the Appellants/Applicants in response to the sole issue in the preliminary objection submitted that Order 15 of the Court of Appeal Rules, 2011 is not applicable to the case at hand because the said Order 15 only envisages a situation where a party who was alive when the appeal was filed dies during the pendency of the appeal; and that the situation in the instant case is that the Appellants on record argued at the Lower Court that there was no valid Defendant to the suit ab initio. Counsel submitted that it was the argument of the Appellants (Defendants at the Lower Court) in their preliminary objection that the 1st Appellant lacks legal personality and that the 2nd Appellant had died and that ground 2 of the Notice of appeal equally complained about non-existence of a Defendant to the suit.
Learned counsel relied on GEORGE Vs. FRN [2014] 5 NWLR (Pt.1339) Pg.1; AJIDE Vs. KELANI [1985] 3 NWLR (Pt.12) Pg.248 and ASABORO Vs. PAN OCEAN OIL CORP (NIG) LTD [2017] 7 NWLR (Pt.1553) Pg. 42 to submit that an appeal is a continuation of trial at the Lower Court and that a party is not allowed to present a case violently different from that which he presented at the Lower Court. Counsel referred to pages 55 – 71 of the Records of Appeal to submit that the Appellants filed a preliminary objection at the Lower Court partly on the ground that there was no Defendant known to law in the suit, and the Respondent who filed a counter-affidavit to the Appellant’s preliminary objection did not dispute the non-existence of a Defendant to the suit nor did the Respondent apply to substitute the dead 2nd Appellant.
Learned counsel referred to FOLKSYNTHESIS LTD Vs. GAPUMA (UK) LTD [2017] 8 NWLR (Pt. 1555) pg.150 to argue that it would be wrong in law for the Respondent who opposed that Appellants’ position that there was no Defendant to the suit to turn around on appeal to support that Appellant’s position at the Lower Court that there is no Defendant known to law in the suit. Counsel argued that Appellants complained that there was no known Defendant to the suit before the Lower Court; the Lower Court in its Ruling, ruled against the Appellants’ preliminary objection which necessitated this appeal; and that it is too late for the Respondent who had failed to amend its process or substitute the dead party to agree with the Appellants that there is no Defendant to the suit.
Learned counsel for the Appellant further relied on OBASI Vs. MIKSON EST IND LTD [2016] 15 NWLR (Pt.1539) Pg. 335 to argue that the grounds of appeal in the Notice of Appeal complain against the misapplication and misunderstanding of law based on admitted facts and therefore they are competent grounds of appeal which need no leave of Court. Counsel also referred to ABUBAKAR Vs. WAZIRI [2008] 14 NWLR (pt.1109) pg.507; ABDUL Vs. CPC [2013] 411 NWLR (Pt.1388) Pg.299 and OTTI vs. OGAH [2017] 7 NWLR (Pt.1563) Pg.1 to submit that where there are several grounds of appeal, some of which are incompetent, a single competent ground can sustain the appeal. In conclusion learned counsel submitted that where leave is required, to deny the Appellant leave to appeal would amount to denying him the right to appeal. Learned counsel urged this Court to dismiss the preliminary objection with substantial cost.
RESOLUTION OF PRELIMINARY OBJECTION
The law is firmly settled that where in a suit or an appeal, a preliminary objection is raised, the Court must hear and determine the preliminary objection before proceeding to deal with the main suit or the appeal, and where the determination of the preliminary objection effectively and effectually brings the suit or appeal to the end, it follows that the necessity to delve into the substantive suit or appeal becomes obviated, See: ALLANAH Vs. KPOLOKWU (2016) LPELR-40724 (SC) Pg.10-11, Paras. D – A and MUSA & ANOR Vs. IBRAHIM (2017) LPELR-43101 (CA) Pg.5, Paras. A – D.
I carefully read the several Applications at the Court below which led to the Ruling giving rise to this appeal, I also read very carefully the objection by the Respondent and the grounds forming basis for the objection. In the preliminary objection, the plank of Respondent’s argument is that there is no competent party before this Court that the 2nd Appellant is dead and that, the jurisdiction of this Court has not been activated because the leave of Court was not sought for and obtained before the Notice of Appeal was filed and that such a Notice cannot be amended having been defective ab initio. The Appellants on their part reiterated their position at the Lower Court that there was no Defendant known to law in the suit because the 2nd Defendant (2nd Appellant) is dead and that the 1st Appellant is not an entity which can be sued. The Appellant also argued that the grounds of appeal contain grounds of law only for which leave is not required and that where one ground is competent in an appeal, the appeal can be sustained this is because only the incompetent grounds will be struck out.
The law is well settled beyond any controversy that the jurisdiction of a Court is activated by the presence of proper parties amongst other factors. Where the proper parties are not before the Court, the Court will not be competent to adjudicate on the matter before it, for a Court to assume jurisdiction, parties must be properly constituted. See: AMADI Vs. FRN [2008] 12 SC (Pt.III) 55; (2008) LPELR-441 (SC) Pg. 12-13, Paras. D – C and OKONTA Vs. PHILIPS & ORS [2010] 18 NWLR (Pt.1225) 320 SC; (2010) LPELR-1373 (SC) ps. 5, paras. C-D where the Supreme Court held that “…it is only when proper parties are before the Court which makes the Court competent to adjudicate on the suit.”
In the instant case, both parties have in their submissions affirmed that the 2nd Appellant, MR. A. OLA OLAWUNMI” died as clearly disclosed by the death certificate exhibited at page 60 of the Records of Appeal. It is trite law that a dead person cannot in law sue or be sued. See the Supreme Court decision in RE OTUEDON [1995] 4 NWLR (Pt.392) 555; (1995) LPELR-1505 (SC) Pg. 15-15, Paras. C & A where IGUH JSC held as follows:
“apart from the legal rights of administrators, executors or the personal representatives of a deceased person, a dead person ceased to have any legal personality from the moment of death and as such can neither sue nor be sued either personally or in a representative capacity…The right to appeal may survive a deceased party to a cause or matter but such rights must be exercised by a living person or persons. A Notice of Appeal which is filed on behalf of or in the name of a dead person is clearly incompetent and should be struck out… Such an action or appeal, as the case may be provided it is still maintainable, will still subsist on the death of the parties but may not be prosecuted or continued with until a living person or persons, as the case may be, hove been substituted for the named deceased persons to carry on…”
See also HITECH CONSTRUCTION CO. LTD Vs. UDE & ORS (2016) LPELR-40065 (CA) Pg. 14-15, Paras. D – D; OGUNSANYA & ANOR Vs. ABDULLAHI (2016) LPELR-40426 (CA) Pg. 13-15, Paras. A – E; and the Supreme Court decision in APC & ORS Vs. IN RE: CPC & ORS (2014) LPELR-24036 (SC) Pg.33-34, Paras. B – C.
The 2nd Appellant, “MR. A. OLA OLAWUNMI” died since the 3rd day of June, 2014 before the Notice of Appeal dated 3rd day of May, 2016 was filed. The 2nd Appellant, ?MR. A. OLA OLAWUNMI? being a dead person cannot be an Appellant before this Court; therefore, the proper order at this juncture is to strike out the name of the 2nd Appellant, “MR. A. OLA OLAWUNMI” in this appeal since there is another Appellant. The law is settled that where one of two or more of the parties dies, the suit is not terminated, but the name of the deceased party or parties will be struck out and substituted with a living person or persons upon an application for that purpose. This Court took this position in AWOYEMI & ORS Vs. FASUAN [2006] 13 NWLR (pt.996] 86; (2006) LPELR-8227 (CA) Pg. 33-34, Paras. D – G where it held as follows and I quote:
that, even if, without making a substitution, the Court proceeds to judgment against all the Defendants, as happened in this case, the judgment cannot, on account of the non-substitution alone, be declared a nullity…”
There was proof before the Lower Court that the 2nd Appellant, “MR. A. OLA OLAWUNMI” died, the Lower Court ought therefore to have struck out his name from the suit even before delivering its Ruling. The learned trial Judge merely stated at page 104 of the Records of Appeal that: “…where a party dies during the pendency of a matter, either the legal representative may be substituted or the name of such deceased person be struck out as the circumstances may dictate.” The learned trial Judge did not make any order regarding the status of the deceased party. The error on the part of the Lower Court however does not, render the entire proceedings a nullity as the 1st Defendant/1st Appellant is still deemed to be a proper party before the Court, subject to filing appropriate applications to substitute. Therefore, in the circumstances therefore, the name of the 2nd Appellant, “MR. A. OLA OLAWUNMI” is hereby struck out.
On the necessity for leave the Respondent argued that the Appellants filed their Notice of appeal without obtaining leave of Court, and learned Counsel argued that being an interlocutory appeal, appellants must comply with the provisions of Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel further submitted that the grounds of appeal as contained in the Appellants Notice of appeal filed at the Registry of the Court on 3rd day of May 2016 are not questions of law and law alone, they are questions of mixed law and facts, and leave of Court must be sought for and obtained. Counsel urged this Court to give effect to this mandatory Constitutional provision.
The Appellants contended that a single competent ground of appeal can sustain the appeal. The Appellants contended that referring to the Notice of appeal at pages 105-109 of the records of appeal all the grounds of appeal are of law and law alone. He urged this Court to so hold.
I examined grounds 1 to 4 at pages 105 to 108 of the records of appeal, the grounds complain of dismissal of objection as lacking in merit, assuming jurisdiction without proper defendants, failure to deliver Ruling after conclusion of addresses service of originating processes on the 1st Defendant on record an entity unknown to law.
The interpretation of documents is always a question of law. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it, whereas an appeal on points of law limits consideration of the appeal to such questions as to whether facts admitted or held proved justify or permit by the rules of law a particular decision or disposal of the case before the Court. See: METAL CONSTRUCTION (WEST AFRICA) LTD vs. D.A. MIGLIORE & ORS, (1990) LPELR-1869 (SC). From the face of the grounds of appeal it is clear to me that they raise questions of mixed law and facts and therefore leave of Court is a precondition, and having filed this appeal without the requisite leave, the Appellants must be ready, prepared and willing to swallow the consequence of so doing, see: GARUBA Vs. OMOKHODTON (2011) 15 NWLR (Pt.1269) S.C 145. It follows therefore that the Notice of appeal filed without the leave of Court is incompetent and therefore liable to be struck out. The preliminary objection filed by the Respondent succeeds and the Appellants Notice of appeal having been held to be incompetent is accordingly struck out.
Cost of N100,000. is awarded to the Respondent against the Appellants.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read before now the draft of the Ruling which has just been rendered by my learned brother, Tijjani Abubakar, JCA. I am in entire agreement with and do not desire to add to the reasoning and conclusion therein contained. I adopt the entire decision as mine.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I am in agreement with the Ruling just delivered by my learned brother, TIJJANI ABUBAKAR, JCA which I had the privilege of reading in draft. There is nothing more to add as the views expressed by my learned brother represent the correct position of the law and represents my opinion in this appeal.
For this and the fuller reasoning contained in the Ruling, I too hold that the preliminary objection succeeds and the Notice of Appeal is accordingly struck out. I also abide by the order as to costs.
Appearances:
Osita Mbamalu, K. Udemezue, C. O. Onumaegbu and J. C. UmehFor Appellant(s)
Martins OyigboFor Respondent(s)
