DIKE & ANOR v. DIKE & ORS (2020)

DIKE & ANOR v. DIKE & ORS

(2020)LCN/14481(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/AW/153/2014

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

1. JOHN NKEMDILIM DIKE 2. MARK-ANTHONY CHIDOLUE DIKE APPELANT(S)

And

TIMOTHY DIKE 2. AARON DIKE 3. CHIKE DIKE 4. LONGINUS DIKE 5. FABIAN DIKE (For Themselves And On Behalf Late Eugene Dike Family Of Umudim Imenwe-Umuezeiyi Village, Achina, Aguata Local Government Area) RESPONDENT(S)

RATIO

WHETHER OR NOT A COURT OF APPEAL FILED ON BEHALF OF A DEAD PERSON IS INCOMPETENT AND IS LIABLE TO BE STRUCK OUT

The Right to appeal may survive a deceased party to a cause or matter, but such right must be exercised by a living person or persons. A Notice of Appeal which is filed on behalf or in the name of a dead person is clearly incompetent and same is liable to be struck out. – RE OTUEDON 1995 LPELR-1506 S.C.
Where a Notice of Appeal is incompetent null and void, there can be no valid appeal pending before the Appellate Court. And where an order of Court is made, granting the Appellant extension of time within which to appeal, and leave to appeal, when there was in fact no living or existing appellant or indeed respondents to the application, such an order will be null and void and of no effect whatsoever. SeeLAZARD BROTHERS V MIDLAND BANK 1932 1 K. B 617 @ 624 C.A. PER PEMU, J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): By Notice in a motion filed on the 6th of April, 2018, the Respondents/Applicants seeks an order of Court striking out Appeal No. CA/E/153/2014 (now Appeal No. CA/AW/153/2014) for being void since the 1st Appellant whose only right was determined by the lower Court with respect to relief sought by the Appellants at the lower Court in Suit No. AG/32/2007 had died on 17/11/2012 before judgment was delivered on 26/11/2012.

Alternatively, for an order striking out all the reliefs granted to the 1st Appellant in the judgment delivered by the lower Court on 26/11/2012, since the 1st Appellant whose only right was determined based on the reliefs sought by the Appellants died on 17/11/2012 before judgment was delivered by the lower Court on 26/11/2012.

And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

The Application is predicated on the following grounds viz;
1. “The 1st Appellant in this case died on 17/11/2012 to the knowledge of the 2nd Appellant.
2. The lower Court delivered its judgment on 26/11/2012

without the 2nd Appellant and his counsel who were in Court informing the Court about the death of the 1st Appellant before the delivery of the judgment.
3. The name of the 2nd Appellant/Respondent was struck out from the case, since he was claiming that his right to the “Obi” of Timothy Dike would enure/mature after the death of the 1st Appellant.
4. The lower Court determined the reliefs sought by the Appellants as though they were only sought by only the 1st Appellant since the right of the 2nd Appellant would only enure after the death of the 1st Appellant.
5. The judgment of the lower Court is void since the 1st Appellant whose only right to “Obi Fabian Dike”/”Obi Timothy Dike” was determined by the lower Court in this Suit had died before the delivery of the judgment.

The Appellants/Respondents in reaction to the application, filed a Counter-affidavit of thirteen (13) paragraphs and a further Counter affidavit of eighteen (18) paragraphs, on the 17th of April, 2018 and 15th October, 2018 respectively.

The Applicants filed a further affidavit in reaction to the Appellants/Respondents Counter

affidavit filed on 17/04/2018, on the 24th of April, 2018.

Parties were directed by this Honourable Court to file written addresses in respect of their submissions which they complied with.

The Respondents/Appellants filed their written address on the 24th of May, 2018, while the Appellants/Respondents filed their written address on the 15th of October, 2018.

On the 3rd of June, 2020, learned Counsel for the parties adopted their respective written addresses.

The Respondents/Applicants had argued in essence that the Appellants who were the Plaintiffs at the Court below, had instituted Suit No.AGT/32/2007 against the Respondents on 21/05/2007 jointly and severally, for declaration of title to the customary or statutory right of occupancy over the piece or parcel of land known as and called “Ala Obi Timothy Dike”; Perpetual injunction and the sum of Five Million Naira (5m) in damages for trespass – Pages 11 and 12 of the Record of Appeal.

The Respondents had however Counter claimed at the Court below on the 5th of March, 2008 for declaration of Court that the defendants, as the children of Late Eugene Dike, are entitled to

the Customary right of occupancy over that piece or parcel of land granted to late Eugene Dike by the 1st Plaintiff in 1971 under Achina Native law and custom. The land is verged yellow on the defendants’ plan.
b) A declaration of Court that the 2nd defendant and Odera are the person entitled to Customary Right of Occupancy over that portion of land verged black (E) granted to them by the 1st Plaintiff in December 2003 in accordance with Achina custom, and
c) An order of perpetual injunction – Page 113 of the Record of Appeal.

They submit that the parties are blood relations, and that they descended from Fabian Dike, who was the father of the 1st and 2nd Appellants.

The 1st Appellant was the oldest surviving first son of Fabian Dike. Eugene Dike, the 2nd son of Fabian Dike was the father of the Respondents. Aaron Dike who was the 2nd Appellant was the 3rd son of Fabian Dike. Timothy Dike as 1st son of Fabian Dike inherited from Fabian Dike.

Timothy Dike was old, not survived by any son as at the time this case was commenced. He was also blind as at the time of the institution of this case.

That the 2nd Appellant who was afraid that the Obi of Fabian Dike would be inherited by the 1st son of Eugene Dike after the death of the 1st Appellant, connived with the 1st Appellant to institute that case jointly with the 1st Appellant, against the Respondents, who are the children of Eugene Dike.

They agree that the Appellants (as Plaintiffs) had at the lower Court, sued the Defendants jointly and severally. But that at the Court below, the parties admitted that the land of which part of it was in dispute, was the homestead of Fabian Dike, and inherited by the 1st Appellant, who was his 1st Son. They wonder why the Appellants would lay joint claim to the homestead of Timothy Dike. – The 1st Appellant.

Submits that the Appellants had in their joint Statement of Claim averred that the land in dispute belonged to the 1st Appellant, and that the right of the 2nd Appellant over the property in dispute would only mature after the death of the 1st Appellant – referring to Paragraphs 21, 22 and 23 of the Statement of Claim filed on the 21st of May 2007 – Pages 9 and 10 of the Record of Appeal. That even the 1st Appellant PW1 did state in his Statement on Oath that

the entire land in dispute belong to him and that the right of the 2nd Appellant over the property “Ala Obi” Timothy Dike” would only mature after the death of the 1st Appellant. Facts corroborated by the 2nd Appellant as PW2.

They argue that the 2nd Appellant had no existing right over the property as at the time the case was at the Court below.

They submit that on the 17th of November, 2012 – nine days before the judgment of the Court below, the 1st Appellant died, and that fact was not disclosed to Court by the 2nd Appellant.

Judgment in the case was delivered on the 26th of November, 2012.

Submits that in the judgment, the Court below struck out the name of the 1st Appellant, since from their pleadings and evidence in Court, the right of the 2nd Appellant over the land in dispute – homestead of “Late Timothy Dike” (1st Appellant) would only mature after the death of the 1st Appellant – Page 348, Lines 6-13 of the Record of Appeal.

The Appellants (Respondents) had in their Counter-claim filed on the 17th of April, 2018 claimed that the 1st Appellant died on 17/01/2013 and not on the 17th of November, 2012.

The Applicants had proffered the following issues for determination viz:
1) WHETHER THE JUDGMENT OF THE LOWER COURT DELIVERED ON 26/11/2012 WAS NOT NULL AND VOID SINCE THE 1ST APPELLANT WHOSE ONLY RIGHT EXISTED AS AT THEN HAD DIED ON 17/11/2012 BEFORE THE DELIVERY OF THAT JUDGMENT.
2) WHETHER THE NOTICE OF APPEAL FILED JOINTLY FOR THE APPELLANTS, INCLUDING THE DECEASED 1ST APPELLANT ON 18/2/2013 IS NOT INCOMPETENT CONSIDERING THE FACT THAT THE SAID NOTICE OF APPEAL WAS FILED AFTER THE DEATH OF THE 1ST APPELLANT.
3) WHETHER THE IRREVOCABLE POWER OF ATTORNEY PURPORTEDLY DONATED BY THE DECEASED 1ST APPELLANT IN FAVOUR OF JOHN NKEMDILIM DIKE AND MARK ANTHONY DIKE WHO ARE THE SONS OF THE 2ND APPELLANT IS NOT AIMED AT SHORTCHANGING THE RESPONDENTS/APPLICANTS.

The Applicants argue that the Court below struck out the name of the 1st Appellant because he did not have any existing right as at then. That the Court below granted Relief 3(a) to the deceased 1st Appellant which is declaration of title over the land known as “Ala Obi Timothy Dike” (the 1st Appellant) with the exception of the portion of Ala Obi Fabian

Dike which the 1st Appellant granted to the 2nd and 3rd Respondents – Page 357 of the Record of Appeal.

That the Court below also granted the Respondents Counter Claim with regard to the portion of land which the 1st Appellant granted to the 2nd and 3rd Respondents on which they had already built a house and refused to grant relief (a) of the Counterclaim which is for a declaration that the Respondents are entitled to that portion of the “Ala Obi Fabian Dike”.

They argue that having struck out the name of the 2nd Appellant, it is very clear that the judgment of Court was only between the deceased 1st Appellant who died before the delivery of the judgment and the Respondents.

They submit that the judgment of Court which was made in favour of the deceased 1st Appellant was made in favour of a dead person. That ipso facto, the part of the judgment made in favour of the Respondents against the deceased 1st appellant was made against a dead person.

That the 1st Appellant, whose only right existed during the pendency of this case at the lower Court died before judgment was delivered, and he was not substituted by anybody,

neither was any application brought to that effect at the lower Court.

That having struck out the name of the 2nd Appellant from the Suit at the Court below, if it knew about the death of the 1st Appellant, it would have struck out the matter.

On Issue No. 2, they submit that the Notice of Appeal filed jointly on behalf of the Appellants is incompetent and void.

That the notice of Appeal filed on the 18th of February, 2013 was filed on the behalf of the Appellants including the deceased 1st Appellant and that dead persons do not file appeals.

Submits that the Notice of Appeal filed in this case for the deceased 1st Appellant is incompetent and ought to be struck out.

Regarding Issue 3, they submit that the irrevocable power of Attorney purportedly donated by the deceased 1st Appellant in favour of John Nkemdilim Dike and Mark Anthony Dike – Sons of the 2nd Appellant is aimed at shortchanging the Respondents/Applicants.

That Exhibits B and EM3 contain the same thing; the donors and donees are the same persons; the witnesses are the same. While Exhibit B was executed and not notarized on 16/04/2018; Exhibit EM3 was executed and

not notarized on 28/04/2018.

In this case, Rev. E. S. Obiorah interpreted the document to the blind Donor who is the deceased 1st Appellant. The documents were also prepared by him. The same man it was who notarized the Irrevocable power of attorney.

Because Exhibits B and EM3 were executed and notarized on different dates, and the contents interpreted to the blind donor on different dates, show that Exhibits B and EM3 cannot pass the test of authenticity.

Argues that neither Exhibits “B” nor “EM3” was mentioned, referred to, or tendered throughout the time this case was at the Court below. Neither did the deceased Appellant say that he donated an Irrevocable Power of Attorney to John Nkemdilim Dike and Mark Anthony Dike with respect to the place he called “Ala Obi Timothy Dike or the homestead of Timothy Dike”. That the 2nd Appellant who signed as a witness of the Irrevocable Power of Attorney did not mention its existence.

Submits that it is curious that Mark Anthony and John Nkemdilim Dike are the names that appear as the beneficiaries in the Irrevocable Power of Attorney of 16/4/2007 and 28/4/2007

that brought a motion for substitution.

That the 1st Appellant they seek to substitute with their names was dead even before the Notice of Appeal was filed. The 1st Appellant therefore had no flesh and blood to appeal the decision of the Court below. The sons of the 2nd Appellant whose names appear in Exhibit B and EM3 cannot substitute the deceased 1st Appellant.

The Appellants/Respondents in their written address proffered four (4) issues for determination viz.
i) WHETHER THE RESPONDENTS/APPLICANT INSTANT MOTION IS COMPETENT SINCE IT ALTERS THE CAPACITY OF THE PARTIES.
ii) WHETHER THE RESPONDENTS APPLICANTS HAVE PROVED THAT THE 1ST APPELLANT DIED ON 17/11/2012 BEFORE THE NOTICE OF APPEAL WAS FILED IN THIS MATTER.
iii) IF THE ANSWER TO THE ABOVE IS IN THE POSITIVE, WHETHER THE 2ND APPELLANT HAS STILL RIGHT TO APPEAL AGAINST THE JUDGMENT OF THE LOWER COURT.
iv) WHETHER THE PERSONS GRANTED IRREVOCABLE POWER OF ATTORNEY OVER THE SUBJECT MATTER IN DISPUTE BY THE 1ST APPELLANT INTER VIVOS HAVE RIGHT TO SUBSTITUTE THE SAID 1ST APPELLANT IN THIS APPEAL IN ORDER TO PROTECT THEIR SAID RIGHTS.

They submit regarding Issue No. 1 that the

present appeal was filed on the 18th of February, 2013 by the Appellants/Respondents against Chika Dike, Longinus Dike and Fabian Dike (for themselves and on behalf of the Late Eugene Dike Family of UmudimImenwe-Umuezeiyi village, Achina, Aguata Local Government Area). This connotes that the Respondents Applicants were sued in a representative capacity.

But that the 1st -3rd Respondents Applicants have brought this instant motion in their personal capacity and without leave of this Honourable Court, thereby changing their capacity upon which this Suit was entertained at the trial Court and is being fought on appeal. That by unilaterally deleting the representative capacity upon which the Notice of Appeal was filed, the Applicants have unilaterally amended the Notice of Appeal and all processes filed in this Court.

Urges Court to strike out the motion as being incompetent Citing APEH V PDP (2016) 7 N.W.L.R. (pt 1510) 153, 174, 175. Paras g.d.

On Issue No. 2, they submit that Exhibit “EM3” which the Appellants rely on as proof that the 1st Appellant died on 17/11/2012, is an unsigned burial brochure. On it was the inscription that the

1st Appellant died on Wednesday January 16, 2013. That an unsigned document is useless in law and lacks evidential value – OMEGA BANK (NIG) PLC VS O.B.C LTD (2005) 8 NWLR. (part 928)547, 576. Ratio 11.

Submits that no certificate of death was tendered in this case. Therefore, the Appellants have failed to prove their assertion that the 1st Appellant died on 17/11/2012 instead of 17/01/2013.

That the 2nd Appellant who gave the information that the 1st Appellant died on the 17th of January, 2013 and was buried on same day was the younger brother of full blood to the 1st Appellant.

On Issue 3, they submit that in land matters, particularly when issues of inheritance and succession are raised, a deceased party can be substituted at any time, even on appeal, with any interested member of the family or any other person who has interest in the said real property.

Citing OJO V AKINSANOYE (2014) LWLR – 22736 (A); and EYESAN V SANWUSI 15 NSCC 271; 283 and AKUMOJU V MOSADOLORUN (1990) 9. NWLR. (pt 214) 236 at 242 they submit that substitution can be done irrespective of whether the deceased party died before the judgment of the trial Court or not.

On Issue No. IV, they submit that it does not matter if irrevocable Power of Attorney is one or two. That it is of no moment that one of the document was executed on 16th April, 2007 and another on 28/04/2007, in so far as there is no conflict between them.

That the donees of the Irrevocable Power of Attorney over the land in dispute – (MR. JOHN NKEMDILIM DIKE and MR. MARK – ANTHONY CHIDOLUE DIKE) have interest in the said property thus making them necessary parties to this appeal. This would enable them protect their interest.

That Suit NO AE/96/2017, which the Respondents/Appellants instituted against the donees of the Irrevocable Power of Attorney was struck out on the 12th of October 2018.

Submits that the parties should be substituted in the circumstances. Urges Court to dismiss this Application.

It seems to me that the gravamen of the Respondents/Applicants motion is that this Appeal should be struck out for being void, because the 1st Appellant right was determined by the lower Court, but that he had died on the 17th of November, 2012 before judgment was delivered on the 26th of November, 2012.

In Paragraph 4 (a) and (b) of the further Counter affidavit to the Applicants motion to strike out appeal filed on the 15th of October, 2018, it says:
4(a) “On 05/09/2018, at Awka, the 2nd Appellant/Respondent, an old man of over 95 years of age, informed me, and I verily believe him that;
a) The 1st Appellant died on 17/01/2013 and was buried the same day. The brochure which the Respondents/Applicants are peddling before this Court as their Exhibit “EM1” was manufactured by them and it is not signed by any known person.
b) The Respondents/Applicants and their Counsel are neighbours to the 1st appellant and they know in actuality that he died on 17/01/2013 …”

The Respondents/Applicants filed no reply to these depositions. They are deemed admitted by them. Pertinent to note that this Appeal was filed on the 18th of February, 2013.

From records, the parties at the Court below were TIMOTHY DIKE and AARON DIKE (as Plaintiffs) and CHIKA DIKE, LONGINUS DIKE and FABIAN DIKE (for themselves and on behalf of the Late Eugene Dike Family of UmudimImenwe-Umuezeiyi village, Achina, Aguata Local Government Area).

On Appeal, the parties before this Court are: TIMOTHY DIKE and AARON DIKE (as Appellants), and CHIKA DIKE LONGINUS DIKE and FABIAN DIKE (as Respondents).

It is therefore correct to state that the parties at the Court below, are the same as the parties on appeal.

However, from records, one John Nkemdilim Dike and one Mark Anthony Chidolue Dike had applied in a motion filed on the 24th of March, 2015, to substitute John Nkemdilim Dike for the 1st Appellant who died on 17/01/2013.

The grounds upon which this application is predicated includes the fact that the 2nd Appellants names had been struck out by the Court below.

Then may I ask, why are his names reflected on the Appeal processes including the Record of Appeal?

There is nothing on record to indicate whether the parties on record have been substituted by an order of Court. An appeal can only be filed by existing parties. The substitution processes on record were filed in 2015. The 2nd Appellant died in 2013.
The Right to appeal may survive a deceased party to a cause or matter, but such right must be exercised by a living person or persons. A Notice of Appeal which is filed on behalf or in the

name of a dead person is clearly incompetent and same is liable to be struck out. – RE OTUEDON 1995 LPELR-1506 S.C.
Where a Notice of Appeal is incompetent null and void, there can be no valid appeal pending before the Appellate Court. And where an order of Court is made, granting the Appellant extension of time within which to appeal, and leave to appeal, when there was in fact no living or existing appellant or indeed respondents to the application, such an order will be null and void and of no effect whatsoever. SeeLAZARD BROTHERS V MIDLAND BANK 1932 1 K. B 617 @ 624 C.A. Consequently, there will in such a situation be no valid appeal pending before the Appellate Court in respect of which an applicant (in a motion for substitution) would be validly substituted for the deceased Appellants (here the 1st Appellant) or the Respondents, all of whom have died (here the 1st Appellant has died).
A Notice of Appeal which is filed on behalf of, or in the name of a dead appellant, after his death, is incompetent, null and void, and the Court cannot be asked to amend such a Notice by substituting a living person or persons in place of the dead litigants

– CLEMENT EZENWOSU V PETER NGONADI. (1988) LPELR (SC); 1988. 3 NWLR (pt 81) 163.
It is not a mere procedural defect that an appeal was filed in the name of a dead person. The lacuna is profoundly fundamental. It is a radical and fundamental error which borders on jurisdiction. It becomes an exercise in futility as EX NIHILO NIHIL FIT.
In the present matter, there is nothing to show that any order of substitution was granted. Even if it was, the parties were supposed to file an application for substitution and leave to appeal the judgment of the lower Court. The Appellants had put the cart before the horse.
The totality is that the appeal as it is, is comatose. It is dead on arrival.
The Respondents were right to have argued that the Appellants should have sought leave to appeal which they did not.
The Application is meritorious and same is hereby granted as prayed.
The result is that Appeal NO. CA/E/153/2014 (now Appeal NO CA/AW/153/2014 is hereby struck out.
N100,000 costs in favour of the Respondents/Applicants.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the judgment just delivered by my

learned brother R. N. PEMU, JCA.
I agree that the Application is meritorious and same granted as prayed.

Consequently, Appeal No. CA/AW/153/2014 is hereby struck out for the more detailed reasons contained in the lead judgment.
I also award N100,000 costs in favour of the Respondents/Applicants.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

EMEKA ANYANECHI, ESQ. For Appellant(s)

EDWIN S.C. OBIORAH, ESQ. For Respondent(s)