MRS. AUGUSTINA EFFIO-ITA EKPE v. MR. TONY EFFIOM EKPE & ANOR (2019)

MRS. AUGUSTINA EFFIO-ITA EKPE v. MR. TONY EFFIOM EKPE & ANOR

(2019)LCN/13937(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of July, 2019

CA/C/361/2017

RATIO

PRACTICE AND PROCEDURE: PRELIMINARY OBJECTION: DEFINITION AND IMPORTANCE

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. Unillorin (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.  The objectors seek to terminate the appeal in limine on two vitriolic grounds as listed above. The import of the grounds is that this Court is not equipped with the jurisdiction to entertain the appeal. PER OBANDE FESTUS OGBUINYA, J.C.A.

JURISDICTION : THE IMPORTANCE OF JURISDICTION IN LITIGATION

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. Ogunnaya (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 (Ct. 1537) 114; A. ? G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWL (Pt. 1641) 1 PER OBANDE FESTUS OGBUINYA, J.C.A.

JURISDICTION: THE NECESSARY INGREDIENTS OF JURISDICTION

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/(1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar?Adua (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.

APPEAL: VALIDITY OF A NOTICE OF APPEAL WHICH FAILS TO MENTION NAMES OF CERTIAN PARTIES

 I have perused the domain of the parties, which are at the cradle of the two pivotal processes, with the finery of a tooth comb.  Admirably, they are submissive to easy comprehension. The three appellants in the judgment, which parented the appeal, were: Mrs. Ekio Ekpenyong Ekpe, Mrs. Augustina Efio-Ita Ekpe and Mr. Inyang Effiom Ekpe.  Curiously, I am unable to find, even with the prying eagle eye of a Court, the names of Mrs. Ekio Ekpenyong Ekpe and Mr. Inyang Effiom Ekpe in the present notice of appeal wrapped between pages 171-173 of the record.  Put bluntly, the parties [appellants] in the lower Court are radically different from those in the appeal.  In Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153 at 180 and 181, Sanusi, JSC, incisively, opined:
It is discernible from the record of appeal that the present applicants have completely changed the character and names of the parties as they were portrayed at the trial Court and the Court below too, without seeking and obtaining leave of Court. This, I am afraid, they have no power so to do. I must emphasise here, that character or identity of a suit should always remain the same right from the inception of the suit and also must be maintained throughout the duration or pendency of the case unless, leave was sought and obtained from the Court, appellate or otherwise, to change it.
 PER OBANDE FESTUS OGBUINYA, J.C.A.

APPEAL: NOTICE OF APPEAL IN COMPARISON WITH OTHER ORIGINATING PROCESSES
A notice of appeal, usually located in the twilight of most records of appeals, is an originating process that initiates an appeal. It is the appellate version of originating process through which actions are commenced in Courts of first instance. It has been described as the nucleus, substratum, bedrock, foundation and spinal cord of every appeal. It is sine qua non for the existence of an appeal in that it gives birth to the later. Thus, it occupies a kingly position in the appellate adjudication. 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 breathe life into, and, de jure, impinges on the jurisdiction of the Court, see Agu v. Odofin (1992) 3 SCNJ 161; Adelekan v. Elu – 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. Little wonder, the objectors launched loads of terminal attacks against the appellant?s notice of appeal. PER OBANDE FESTUS OGBUINYA, J.C.A.

APPEAL: NOTICE OF APPEAL: EFFECT OF AN INCOMPETENT NOTICE OF APPEAL

It is discernible from this juridical survey, that the presence of the incompetent notice of appeal is a feature in the appeal which, seriously, erodes the jurisdiction of this Court from entertaining the appeal. Besides, the appeal is not initiated by due process of law and upon fulfillment of the condition ? precedent for this Court to exercise its jurisdiction over it. Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Isah v. INEC (supra). PER OBANDE FESTUS OGBUINYA, J.C.A.

JURISDICTION: EFFECT OF LACK OF JURISDICTION OF A COURT TO HEAR A MATTER AND EXCEPTIONS

Having found that this Court is divested of the jurisdiction to hear the appeal, the law makes it idle to consider the other issues canvassed by the feuding parties. In Ikechukwu v. FRN (2015) NWLR (Pt. 1457) 1 at 21, Nweze, JSC, incisively, declared:
It cannot be gainsaid that, as a general rule, an intermediate Court, like the lower Court, [Court of Appeal] has a duty to pronounce on all the issues before it.
However, there are some exceptions to the above broad rule that applies to the lower Court, as an intermediate Court. Thus, for example, where the said Court, as an intermediate Court, decided that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction
See also, Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80.
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; Uwazuruike 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

MRS. AUGUSTINA EFFIO-ITA EKPE Appellant(s)

AND

1. MR. TONY EFFIOM EKPE
2. MR. BASSEY EFFIOM EKPE Respondent(s)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the decision of the High Court of Cross River State, holden at Calabar (hereunder addressed as ?the lower Court?), coram judice: Ukpai A. Ibitham, J., in Appeal No. HC/25A/2016, delivered on 19th July, 2017. Before the lower Court, the appellant and the respondents were the appellant and the respondents respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. One late Mrs. Atim Effiom Ekpe mothered the respondents and late Messrs Efioita Effiom Ekpe, Offiong Effiom Ekpe and Ekpenyong Effiom Ekpe.  Mrs. Atim Effiom Ekpe died on 6th May, 1994.  She died intestate. On 24th October, 2012, the respondents, the only surviving sons of the deceased, applied for letters of administration to administer her estate. Mrs. Ekio Ekpenyong Ekpe, Mrs. Augustina Efio-Ita Ekpe (the appellant) and Mr. Inyang Effiom Ekpe, who were the surviving wives and son of late Messrs Efioita Effiom Ekpe, Offiong Effiom Ekpe and Ekpenyong Effiom Ekpe respectively, entered a caveat, on 12th April, 2013, in the probate registry of the lower Court against the grant of the respondents? application for letters of administration. Later on, they filed affidavit and further and better of affidavit of interest in the deceased?s estate.  Subsequently, the respondents, on 20th October, 2015, filed an application for an order dismissing the caveat as the caveatrixes and caveator had no locus standi to interfere with their right in the application, registered as LA/666/2012, for the letters of administration. The probate Court was presided over by His Worship, Emeng Elogbo Edogi, a Deputy Chief Registrar of the lower Court, who, duly, heard the r