MADAM WOSILATU OLOGUNDUDU PEARSE v. ALHAJI KOSENATU OLOYEDE & ORS
(2013)LCN/6500(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of November, 2013
CA/L/736/2008
JUSTICE
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
Between
MADAM WOSILATU OLOGUNDUDU PEARSE
(Sued as executrix de son tort and beneficiary of the Estate of Late Sariyu Abeke Oloyede)Appellant(s)
AND
1. ALHAJI KOSENATU OLOYEDE
2. ALHAJI CHIEF MORUFU OLOYEDE
3. SEMIU OLOYEDE
4. FATAI JIMOH – SON OF SINATU OLOYEDE
(Suing as beneficiaries of the Estate of Sariyu Abele Oloyede)Respondent(s
RATIO
WHETHER OR NOT APPEALS SHALL BE BY WAY OF REHEARING AND SHALL BE BROUGHT BY NOTICE
Order 6 Rule 2(1) of the Court of Appeal Rules 2011 stipulates inter alia that all appeals shall be by way of rehearing’ and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of, and shall state also the exact nature of the relief sought, and the names and addresses of all parties directly affected by the appeal…” PER PEMU, J.C.A.
WHEN AN APPEL IS DEEMED TO HAVE BEEN BROUGHT
Order 7 Rule 11 of the Court of Appeal Rules stipulates thus
“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below”‘
Learned counsel for the Applicant had submitted in his reply to the written address of the Respondents, in conceding to the fact that no appeal had been entered, argues he can come under the umbrage of the “inherent jurisdiction of the Court'”
“Inherent jurisdiction of the court” has been defined as a source of law which is peculiar and special to civil procedural law. The jurisdiction of the court which is comprised within the term “inherent”‘ is that which enables it to fulfill itself and effectively as a court of law. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Lead Ruling): By motion on notice dated on the 4th of March 2013, the Applicant seek the following Order of Court viz:
(i) AN ORDER praying the Honourable Court to substitute the Appellant, Madam Wosilatu Ologundudu Pearse (deceased) with Mr. Kayode Alade Folawiyo (the Applicant) her son for an on behalf of the estate of the deceased.
(ii) AN ORDER granting leave to amend the processes filed to relist the appeal earlier filed in this matter pursuant to the leave being granted for substitution.
The grounds upon which the application is predicated are that
1. The Appellant in this appeal is dead
2. The Appeal is not a personal action but it involves inheritance under Yoruba native law and custom
3. The cause of action (appeal) is survives Madam Wosilatu Ologundudu Pearse, the Appellant.
4. Mr. Kayode Alade Folawiyo being the only male child of the deceased (Appellant) wants to be substituted for the Appellant because the cause of action survives the Appellant, his mother.
The application is supported by a eighteen paragraphs (18) affidavit deposed to by one Olawande Idris, Legal Practitioner in the chambers of Messrs Lanre Ogunlesi SAN & co. Annexed to the affidavit in support of the motion is Exhibit “WO1” – Medical Certificate of cause of death of the deceased, Alhaja Wosilatu Ologundudu Pearse.
The parties filed their respective written addresses in support of and against the application.
On the 8th of May 2013, the Applicant (Mr. Kayode Alade Folawiyo) filed his written address in support of his application.
On the 13th of May 2013, the Respondent filed his written address in opposition to the application.
A reply of the Applicant to the written address is dated 16th May 2013. The fulcrum of the Applicant’s application is to substitute late Madam Wosilatu Ologundudu Pearse with Mr. Kayode Alade Folawiyo; to relist the motion on notice to extend time within which to seek leave to appeal filed on the 8th of March 2012, to enable him prosecute the appeal on behalf of the estate of the deceased.
But the Respondent, who filed no counter-affidavit, in his written address in opposition to the motion dated 1/3/2013 and filed on 4/3/2013, had argued as stated in his issue for determination which is whether
(a) An application to substitute a party is competent under Order 15 of the Court of Appeal Rules 2011, in the absence of on existing appeal which has been duly entered in this Court, and whether the motion dated 1/3/2013 and filed on the 4th of March 2013 is not abuse of Court process and liable to be dismissed.
The Respondents has argued that there is no appeal before this court, as none has been filed. There is therefore no Appellant. For the Applicant to refer to the deceased as Appellant, is therefore a misconception. No appeal has been entered, he argues. There is only a motion for extension of time to appeal and for leave to appeal.
From records, there was a motion filed on the 8th of March 2012, for an order to relist the motion on notice dated 16th September 2008 for extention of time within which to seek leave, and filed Notice of Appeal against the Judgment delivered by the Hon. Justice (Mrs.) T. Ojikutu-Oshode of the Lagos state High Court, Ikeja Judicial Division which was struck out by this Honourable court on the 22nd of February 2010.
The motion of 8th March 2012, was struck out on the 9th of October 2013.
The necessary implication is that there is no Notice of Appeal before this Court in respect of this matter.
Upon what then is this application predicated? The court cannot act in vain.
Order 6 Rule 2(1) of the Court of Appeal Rules 2011 stipulates inter alia that all appeals shall be by way of rehearing’ and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of, and shall state also the exact nature of the relief sought, and the names and addresses of all parties directly affected by the appeal…”
Order 7 Rule 11 of the Court of Appeal Rules stipulates thus
“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below”‘
Learned counsel for the Applicant had submitted in his reply to the written address of the Respondents, in conceding to the fact that no appeal had been entered, argues he can come under the umbrage of the “inherent jurisdiction of the Court'”
“Inherent jurisdiction of the court” has been defined as a source of law which is peculiar and special to civil procedural law. The jurisdiction of the court which is comprised within the term “inherent”‘ is that which enables it to fulfill itself and effectively as a court of law.
The overriding feature of the inherent jurisdiction of the court, is that it is a part of procedural law both civil and criminal.
Exhibit “A” annexed to the affidavit in support of the counter-affidavit filed on the 29th of March 2012 is instructive. Let me reproduce same verbatim.
“Chief Kunle Oyewo & Co,
79, Mobolaji Bank Anthony Way
Ikeja, Lagos.
Attention:, Chief Kunle Oyewo
Dear Sir,
Re: Appeal No.CA/L/736M/08
Suit No. ID/1532/02
Madam Wosilatu Ologundudu-Pearse
v
Alhaja Kosenatu Oloyede & 3 Ors.
We remain Solicitors to Alhaja Wosilatu Ologundudu-Pearse (‘our client’).
Sequel to a meeting with our client, we write to inform you of her intention to stop further proceedings of the Court of Appeal and abide by the judgment of the High Court delivered by Hon. Justice T, Ojikutu-Oshode on 21st December 2007 in respect of the above mentioned matter.
However, since the judgment did not specify whom to share or administer the properties, we are of the opinion that a Government appointed Administrator would best serve both parties interests in the circumstance.
Consequently, we hereby urge you to take necessary steps for the Administrator to be so appointed to enable our client handover the properties in her possession in line with aforementioned judgment.
We are very much obliged.
Yours faithfully,
For: Caxton & Lueke
Yeseed Aro-Lambo, Esq.
Managing Partner”.
It is dated 9th July 2009
The Respondent had argued that the Applicant’s counsel had, by this letter expressed his desire not to pursue the motion dated 5th September 2008, but to abide by the Judgment of the Lower Court. Noteworthy is that that motion is not before this court, in considering this application.
The Respondent had argued that the Applicant has been in disobedience of the Judgment she is seeking to appeal against. That the motion the Applicant is now seeking to relist had been struck out since 22/2/2010, and this had been brought to the notice of the Applicant by the Respondent as far back as 5/1/2011 (paragraphs 7-10 of the counter-affidavit filed on the 29th of March 2012).
The Respondent had argued that to grant the application, would be prejudicial to the Respondents. This is because
(a) The Judgment sought to be appealed has already been compromised by all the parties and parties have been taking their respective due and liabilities under the compromise arrangement for over a year now.
(b) The Respondents had been led into revolving the contempt proceedings against the Applicant in the Lower Court, to prevent this ungrateful Applicant from being jailed and in order to allow peace and harmony to reign in the family – (paragraphs 12, 19 of the counter affidavit).
I have perused the written addresses of the respective parties and painstakingly considered the elements therein.
First and foremost, no appeal has been entered in respect of this matter. The motion filed by the Applicant on the 8th of March 2012 for extention of time within which to seek leave to file Notice of Appeal was struck out on the 9th of October 2013.
The Applicant, by this application is now seeking leave of Court to relist the appeal. You cannot relist what does not exist.
His application should have been for an order inter alia for leave to appeal. When the appeal is entered, he can now come with other application. That would definitely be neater. When the appeal is entered, he can now apply to substitute.
The application becomes premature and is hereby struck out. N10,000 costs in favour of the Respondent.
SIDI DAUDA BAGE, J.C.A.: I read before now the lead ruling just delivered by my learned brother
R. N. PEMU JCA, I agree with the reasoning and the conclusion reached at the ruling. The Applicant’s application is premature, and also struck out by me. I abide by the order as to costs contained in the lead ruling.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in advance the lead Ruling just delivered by my learned brother Pemu JCA. I agree with his view that the application is misconceived. There was no pending appeal so substitution of the appellant cannot arise. An earlier motion on notice for extension of time within which to seek leave to appeal had been struck out. The applicant sought leave to substitute the appellant and to relist the appeal when there is no appeal in existence. I agree that the application ought to be struck out. I also strike it out and abide by the consequential orders as to costs in the lead ruling.
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Appearances
Lanre Ogunlesi (SAN) with Mr. Ukedi O. J. Esq.For Appellant
AND
S. O. Oyewo Esq. and S. O. ReisFor Respondent
