JOHN ANDY SONS & CO. LIMITED v. ENO ANIETIE MFON ETIM
(2019)LCN/13437(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/C/454/2014
RATIO
PRELIMINARY OBJECTION: DEFINITION AND RELEVANCE
A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unilorin(2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd.(2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v. Amadi (2011) 14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa?eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law.PER OBANDE FESTUS OGBUINYA, J.C.A.
JURISDICTION: DEFINITION
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, seeAjomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Society Bic S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 497; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; A. ? G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175. A Court of law is invested with jurisdiction to hear a matter when: 1. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction?, see Madukolu v. Nkemdilim (2006) 2 LC 208 (961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. YarAdua (2008) 12 NWLR (Pt. 1100); Saraki v FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must co-exist in order to vest jurisdiction in a Court.PER OBANDE FESTUS OGBUINYA, J.C.A.
A MATTER CAN BE STRUCK OUT IF THERE IS A NON LEGAL PERSON WHO CANNOT EXERCISE LEGAL RIGHTS AND OBLIGATIONS
Where either party to an action is not a legal person, capable of exercising legal rights and obligations in law, the action is plagued by incompetence and liable to be struck out, see Agbonmagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt.105) 558; Ataguba & Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429; A. ?G., Anambra State v. A. ?G., Fed (2007) 12 NWLR (Pt. 1047) 4; Admin./Exec., Estate, Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; M.M.A. Inc. v N.M.A. (2012) 18 NWLR (Pt. 1333) 506; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; BB. Apugo & Sons Ltd. v.O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Interdrill (Nig) Ltd v. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52; Dairo v. Regd. Trustees, T. A. O.., Lagos (2018) 1 NWLR (Pt. 1599) 62.PER OBANDE FESTUS OGBUINYA, J.C.A.
WHETHER A DEAD PERSON HAS A LEGAL PERSONALITY
It is settled law, that a dead man/person loses his legal personality and as such cannot sue or be sued in any action. By the same token, such a deceased person cannot initiate or defend an appeal. In the Latin days of the law, the hallowed principle of law was encapsulated in the maxim: Actio personalis moritor cum persona: a personal action dies with the person, see Management Enterprises Ltd. v. Otusanya (1987) 1 NSCC (vol. 18) 577/(1987) 2 NWLR (Pt. 55) 179/(1987) 4 SC 368; Oyeyemi v. Commissioner for L.G. Kwara State (1992) 2 NWLR (Pt. 226) 661; In Re: Adeosun (2001) 8 NWLR (Pt. 714) 200; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163; In Re: Otuedon (1995) 4 NWLR (Pt. 392) 655; C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65; Mulima v. Usman (2014) 16 NWLR (Pt. 1432) 160; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531.PER OBANDE FESTUS OGBUINYA, J.C.A.
EFFECT OF A DEFECTIVE NOTICE OF APPEAL
Given this Olympian status, where a notice of appeal is defective, for whatever reason, it contaminates the competence of an appeal, which it ought to infuse life into, and, de jure, impinges on the jurisdiction of the Court, see Agu v. Odofin (1992) 3 SCNJ 161; Adelekan v. Ecu – Line NV (2006) 2 NWLR (Pt. 993) 33; Okolo v. UBN Ltd (2004) 3 NWLR (Pt. 859) 87; Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Odunze v. Nwosu (2007) 13 NWLR (Pt.105) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; General Electric CO. v. Akande (2010) 18 NWLR (Pt. 1225) 596; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Ikuepenikan v. State (2016) 9 NWLR (Pt. 1465) 518; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1509) 1; Japhet v. State (2016) 6 NWLR (Pt. 1509) 602; SPDCN Ltd v. Sam Royal Hotel (Nig) Ltd. (2016) 9 NWLR (Pt. 1516) 126. PER OBANDE FESTUS OGBUINYA, J.C.A.
JURISDICTION: EFFECT OF A COURT NOT HAVING JURISDICTION
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.PER OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
JOHN ANDY SONS & CO. LTD Appellant(s)
AND
ENO ANIETIE MFON ETIM
(Defending By His Attorney Peter Etim Udo) Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of decision of the High Court of Akwa Ibom State, holden at Uyo (hereinafter abridged to the ?the lower Court?), coram judice: Joy I. Unwana, J., in Suit No. HU/57/1993, delivered on 25th February, 2014. Before the lower Court, the appellant and the respondent were the plaintiff and the defendant respectively.
?The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The appellant claimed that the land in dispute, which is known as No. 51 Aka Road, Uyo, Akwa Ibom State, originally belonged to the respondent?s late step father: Anietie Mfon Etim. In 1972, Anietie Mfon Etim sold the land to one late Bassey Okon Eyo who took ownership and possession of it. In 1977, late Bassey Okon Eyo authorised his three sons to sell the land in dispute to the appellant and the sale transaction was reduced into writing. The appellant exercised acts of possession and ownership over the land without let or hindrance. The appellant alleged that in 1992, late Anietie Mfon Etim unlawfully entered
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into the land, cultivated it, destroyed the economic crops thereon and claimed that it was his. There was arbitration over the ownership of the land, by Aka Offot Town Council, which wrongly went in favour of the respondent. Sequel to the alleged trespass, the appellant, via a writ of summons filed on 13th April, 1993, beseeched the lower Court and tabled against the original owner, who was later substituted with the respondent, the following reliefs:
(a) A DECLARATION of title to the Statutory Certificate of Occupancy over the portion of land known as No. 151 Aka Road Uyo shown in the Plaintiff?s survey plan No. 03 – 94 Ak-050D dated 20th January, 1994.
(b) N100,000.00 being Damages for trespass.
(c) PERPETUAL injunction re-straining the defendant, his agents and assigns from further committing acts trespass on the land in dispute.
In reaction, the respondent joined issue with the appellant and denied liability. The respondent asserted that the family land was pledged, not sold, to late Bassey Okon Eyo by late Anietie Mfon Etim. The pledge was redeemed based on the decision of the Aka Offot Town Council and ownership of the land
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reverted to the respondent?s family. Consequently, the respondent counter-claimed and claimed against the appellant the following reliefs:
(1) A declaration that the Defendant is entitled to statutory right of occupancy over the entire parcel of land situate at No. 151 Aka Road Uyo delineated in plan No. AS/AK.75/94 LD of 1-8-1994 and verged Green and filed along with the statement of Defence and counter-claim.
(2) A declaration that the Area shown in plaintiff?s plan No. 03-94-AK-0050 filed along with plaintiff?s statement of claim and verged red is entirely the Defendant?s land absolutely.
(3) (i) Special damages of N245,000
(ii) General damages of N10 million
Total = N10,245,000 (Ten million two hundred and forty five thousand naira).
(4) Perpetual Injunction restraining the plaintiff, its agents, privies or servants from trespassing or laying claim to any portion of the Defendant?s land more particularly delineated on survey plan No. AS/AK.75/94 of 1st August, 1994.
(5) A declaration that the Certificate of Occupancy obtained by the plaintiff over the Defendant?s land during the
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pendency of this suit is null and void and of no effect whatsoever.
(6) An order of this Court compelling the plaintiff to deliver to this honourable Court for cancellation, of ?Certificate of Occupancy? illegally obtained by the plaintiff over the Defendant?s said land.
Following the rival claims, the lower Court, after treating several applications in the case, had a full-scale determination of it. In proof of the case, the appellant fielded two witnesses, PW1 and PW2, and tendered four documentary evidence: exhibits A, B, C and F. In disproof of the case, the respondent called his attorney, DW1, and tendered two documentary evidence: exhibits D and E. At the conclusion of evidence, the parties, through their respective counsel, addressed the lower Court. In a considered judgment, delivered on 25th February, 2014, found at pages 432-446 of the record, the lower Court struck out the appellant?s claim and the respondent?s counter-claim for being incompetent.
The appellant was dissatisfied with the decision. Hence, on 23rd May, 2014, the appellant lodged a 2-ground notice of appeal, copied at pages 447-449 of the
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record, and prayed this Court as follows:
1. A DECLARATION that the Defendant?s Attorney Mr. Peter Etim Udoh, being an agent of a disclosed principal who is a party to the present suit could not have been sued or joined as a party in this suit.
2. A DECLARATION that the Defendant?s Attorney, Mr. Peter Etim Udoh, having participated fully throughout this suit and having stated in his pleadings that he is a member of the Defendant?s family was certainly a party by privy in this suit.
3. A DECLARATI
