MRS. PRISCILLA AHURA & ANOR v. LIAMBEE AZAAGE
(2019)LCN/12633(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/MK/178M/2012(R)
RATIO
APPEAL RIGHT OF AGGRIEVED PARTY
“It is the right of a party who is aggrieved by a ruling of a High Court to appeal against it as of right or with leave of Court. See Sections 241 (1) (b) and 242 (1) of the Constitution of Nigeria, 1999 (as amended). Pursuant to that right, the applicants brought the motions filed on 21/11/2012 and 18/5/2015 against the deceased for leave to appeal. As earlier stated before the hearing of the motion the deceased died. But since the matter is a land matter, its survives his death. The right of appeal of the applicants cannot be lost by reason only of his demise.” PER JOSEPH EYO EKANEM, J.C.A.
INTERPRETATION: MEANING OF THE ‘DETERMINATION’
“The learned authors of Black’s Law Dictionary, 9th edition page 514 defines “determine” and “determination” as follows: ‘1. A final decision by a Court or administrative agency ‘the Court’s determination of the issue’. 2. The ending or expiration of an estate or interest in property, or of a right, power, or authority ‘the easement’s determination after four years’.’ In Osborn’s Concise Law Dictionary, 9th edition page 133, “determination” and to “determine” is defined by Sheila Bone as; to come to an end, (2) to decide an issue or appeal”. In Words and Phrases Legally Defined 2nd edition by John B. Saunders Vol. 2: has the following write-up on “determined” and “determination” at pages 63-64:- A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her Widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow’s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire’s Modem Real property (10th Edition) 281).” PER JOSEPH TINE TUR J.C.A
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. MRS. PRISCILLA AHURA
2. IORUNGWA GEORGE AHURA Appellant(s)
AND
LIAMBEE AZAAGE Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 16th January, 2019 and filed on 17/1/2019, the applicants apply for:
1. AN ORDER of this Honourable Court granting Applicants leave to substitute LIAMBEE AZAGEE FOR AZAAGE AKUSE the Deceased Respondent to Applicants’ Motion No: CA/MK/178M/2012, dated 20/11/2012 and filed on 21/11/2012, and that dated 15/05/2012 and filed on 18/05/2015
2. AN ORDER of this Honourable Court granting the Applicants leave to amend Motion No: CA/MK/178M/2012 dated 20/11/2012 and filed on 21/11/2012, and that dated 15/05/2015 and filed on 18/05/2015, by replacing the name of AZAAGE AKUSE with that of LIAMBEE AZAAGE on the said Motion and Exhibits A2, A5 and A6 attached thereto.
3. AN ORDER of this Honourable Court deeming Applicants’ Motion No: CA/MK/178M/2012, dated 20/11/2012 filed on 21/11/2012 and that dated 15/05/2015 and filed on the 18/05/2015, hitherto bearing the name of AZAAGE AKUSE as having been duly amended to reflect the substituted and amended name of LIAMBEE AZAAGE.
4. And for such other or further Orders as this Honourable Court may deem fit to make in the circumstances of this matter.
The grounds for the application are:
a. That the Respondent to Motions dated 20/11/2012 and filed on 21/11/2012, and that dated 15/05/2015 and filed on the 18/05/2015, is deceased.
b. That the subject matter of the Appeal processes herein upon which the Applicant is seeking leave and extension of time to Appeal is land.
c. That the Applicant requires the leave of this Honourable Court to substitute the Deceased respondent to enable the effective determination of Motion No:CA/MK/178M/2012, dated 20/11/2012 and filed on 21/11/2012, and that dated 15/05/2015 and filed on the 18/05/2015.
d. That this Honourable Court has the inherent powers to grant this application.
The motion is supported by a 5 paragraph affidavit deposed to by Lizzy Onyeke, an Administrative Secretary in the law firm representing the applicants – F.M. Ebofuame – Nezan & Company, of 87 Ankpa Road, Makurdi. Attached to it are Exhibits A1, A2 and A3. The respondent did not file any counter – affidavit.
On 22/1/2019 when the application came up for hearing, F.M. Ebofuame – Nezan, Esq., for applicants moved the motion, relying on the supporting affidavit. She referred to Order 15 and Order 1 Rule 5 of the Court of Appeal Rules, 2016.
S.O. Okpale, Esq., for the respondent pointed out that all the parties in the lower Court are not parties to the application. It was his submission that since the judgment to be appealed against involves ten persons, the motion ought to incorporate all the ten persons.
It is pertinent to point out that before this Court, the applicants sought for leave to appeal against the ruling of the Benue State High Court, Makurdi, in Motion No. 25809 M delivered on 23/10/2012 (motion of 21/1/2012) and leave to appeal against the decision of the same Court in Suit No. MHC/294/2001 delivered on 15/2/2013 (motion of 15/5/2015). The two rulings, it needs be stated, sprang from the same Suit No. MHC/294/2001 that was before that Court. Azaage Akuse was the 10th defendant before the lower Court and the respondent in the two motions before this Court.
Before the motions for leave to appeal could be heard, the said Azaage Akuse was reported dead. Consequently the applicants brought the motion under consideration to substitute Liambee Azaage (the most senior son of the deceased) for the deceased in the two motions.
Respondent’s counsel contended that the parties before the High Court have not all been made parties to this application and emphasised that since the judgment (sic: ruling) to be appealed against involves ten defendants, the application ought to incorporate all of them, and not just one of them.
A party aggrieved by a decision of a Court has the discretion to choose who to include in his appeal so long as the party/ies he seeks to appeal against are the parties to be affected by the appeal and for whose benefit the decision accrues. In the case of Adhekegba V Minister of Defence (2013) 17 NWLR (Pt. 1382) 126, 147 Akomolafe ? Wilson, JCA stated that:
an appellant has the right to choose those who to appeal against and the point he wishes to canvass. It is not compulsory that all the parties in the lower Court have to automatically be made parties to the appeal. The non – inclusion of such persons cannot make the appeal incompetent
In this instance, the rulings sought to be appealed against were made in favour of the deceased, refusing the applicants’ motion to amend their pleading to meet the deceased’s counter – claim with the defence of statutory limitation. The other defendants were not beneficiaries of the ruling/s and so need not be made parties to the application as its determination will not affect them one way or the other.
It is the right of a party who is aggrieved by a ruling of a High Court to appeal against it as of right or with leave of Court. See Sections 241 (1) (b) and 242 (1) of the Constitution of Nigeria, 1999 (as amended). Pursuant to that right, the applicants brought the motions filed on 21/11/2012 and 18/5/2015 against the deceased for leave to appeal. As earlier stated before the hearing of the motion the deceased died. But since the matter is a land matter, its survives his death. The right of appeal of the applicants cannot be lost by reason only of his demise.
Order 1 Rule 5 of the Court of Appeal Rules, 2016 defines an appeal to include
an application for leave to appeal.
Section 30 of the Court of Appeal Act defines an ‘appellant’ to mean;
“… any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal”
In Williams v Mokwe (2005) 14 NWLR (Pt. 945) 249, 266 Kalgo, JSC, opined as follows:
By Section 31 of the Court of Appeal Act, an ‘appellant’ is defined to mean, any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to appeal, and includes a legal practitioner representing such a person in that behalf.” By filing the motion for leave to appeal in the trial Court’ the respondent was definitely desirous of appealing’ He was therefore an ?appellant? within the meaning of Section 31 of the said Act.
Since an applicant for leave to appeal is technically an ?appellant? and since an appeal includes ?an application for leave to appeal?, Order 15 of the Court of Appeal Rules, 2016 applies to the applications by the applicants for leave to appeal.
Order 15 Rule 2 of the said Rules provides:
‘Where it is necessary to add or substitute a new party for the deceased, an application shall subject to the provisions of Order 4 Rule 10, be made in that behalf to the Court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.’
It flows from the foregoing that an applicant in an application for leave to appeal can apply to substitute a non – party for a deceased respondent as in this instance. To hold otherwise will lead to the frustration of the constitutional right of such a party to appeal against a decision of the Court that he is aggrieved by.
The only snag in this application, though not raised by the respondent, is that the application is founded on the motions filed on 21/11/2012 and 18/5/2015 in which Azaage Akuse is the respondent on record. In the motion under consideration the name of Azaage Akuse is excluded. The established practice is to still maintain the name of the parties including the deceased and add the name of the party sought to be substituted as the respondent. See Apeh v PDP (2016) 7 NWLR (Pt. 1510) 153, 175 and PPA v INEC (2012) 13 NWLR (Pt. 1317) 215, 237.
However, these decisions of the Supreme Court seem to have been based on Order 2 Rule 8 of the Supreme Court Rules, 1999 (as amended) which states:
“Notices of appeal, application for leave to appeal, briefs and all other documents whatsoever prepared in pursuance of the appellate jurisdiction of the Court for filing in accordance with the provisions of these Rules, shall reflect the same title as that which obtained in the Court of trial.”
Nevertheless that seems to be the practice in the Court. But being a matter of practice coupled with the fact that the Court did not give counsel opportunity to address it, it shall not serve to defeat the application.
It is therefore my view that prayer 1 on the motion paper is meritorious and deserves to be granted.
In respect of prayer 2, it is my position that the first arm of it deserves to be granted. The second arm of the prayer seeking for an amendment of Exhibits A2, A5 and A6 attached to the motions needs a closer look. The said exhibits sought to be amended are the notice of appeal and the proposed notices of appeal. A Court may amend a process filed before it or brought before it but a Court has no power to amend an exhibit attached to an affidavit in support of an application. To do otherwise will amount to the Court amending a document that is put before it as evidence. The second arm of prayer 2 is therefore not grantable.
In respect Of prayer 3, it is my view that it will serve the ends of justice better for fresh applications to be filed reflecting the grant of prayer 1.
On the whole, the application succeeds in part. It is therefore ordered as follows:
1. That leave be and is hereby granted to the applicants to substitute Liambee Azaage for Azaage Akuse, the deceased respondent to applicants’ motion No. CA/MK/178M/2012 dated 20/11/2012 and filed on 21/11/2012 and motion dated 15/05/2015 and filed on 18/05/2015.
2. That the applicants be and are hereby granted leave to amend the said motions to reflect Order 1 supra.
3. That the applicants shall file fresh motions bearing the same number to reflect Order No. 1 and 2 supra. within 14 days of today’s date.
The parties shall bear their costs.
JOSEPH TINE TUR, J.C.A.: I had the advantage of reading an advanced copy of the determination of this dispute in the “Ruling” of my learned colleague, J. E. Ekanem, J.C.A. which I adopt as mine. These proceedings were conducted by the parties before the lower Court under Section 36(1) and 294(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered. The provisions are couched in the following language:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
The important words the legislature used in Section 36(1) and 294(1) of the Constitution are “determination”, “determined” and ‘decision”.
A ‘Ruling’ is omitted in the above provisions. Section 315(4)(c) of the Constitution of the Federal Republic of Nigeria 1999 as altered defines “modification” to “include addition, alteration, omission or repeal”.
Section 318(1) Of the Constitution of the Federal Republic of Nigeria 1999 as altered is couched as follows:
“In this Constitution, unless it is otherwise expressly provided or the con Otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
The legislative intention is that a “decision” is “any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation” in Section 318(1) of the Constitution. “Determination” or to be “determined”, etc has been given judicial interpretation by the Supreme Court defined ”determination” in Deduwa vs. Okorodudu (1976) 1 NMLR 236 per in Alexander, C.J.N at pages 243-244 to wit:-
“More light is thrown on the meaning of the words “decision” and determination” in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: “We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ‘a bringing or coming to an end? or (the mental action of coming to a decision? or the resolving of a question’)
In Oaten vs. Auty (1919) 2 KB. 278. J.. at page 284 interprets the word ‘determine’ as meaning ‘make an end of the matter.’ In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of a mater.”
In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that:-
“The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini panel.”
The learned authors of Black’s Law Dictionary, 9th edition page 514 defines “determine” and “determination” as follows:
“1. A final decision by a Court or administrative agency ‘the Court’s determination of the issue’. 2. The ending or expiration of an estate or interest in property, or of a right, power, or authority ‘the easement’s determination after four years’.”
In Osborn’s Concise Law Dictionary, 9th edition page 133, “determination” and to “determine” is defined by Sheila Bone as; to come to an end, (2) to decide an issue or appeal”. In Words and Phrases Legally Defined 2nd edition by John B. Saunders Vol. 2: has the following write-up on “determined” and “determination” at pages 63-64:-
“A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her Widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow’s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire’s Modem Real property (10th Edition) 281).
“It is said that ‘termination’ and ‘determination’ do not mean the same thing; that ‘termination ‘ means the thing coming to its natural end; ‘determination’ means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ‘A’, would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of ‘A’? And as to the grammatical or popular use of the term it is rather remarkable that, in Todd’s edition of Johnson’s Dictionary, the fourth sense given of the word ‘determination ‘ is ‘expiration, – ‘end’. And the lexicographer adds, ‘Used only by lawyers; as, from and after the determination of the said lease.’ The word ‘determination’ may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.”
St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley V.-C at pp. 618, 619.
“The words of the condition (in a bond) are, ‘if the determination of the said action shall be in favour of the plaintiff, etc. We are of opinion that, as there was at the commencement of this action a judgment in favour of the plaintiff, and there was no stay of execution on the judgment, such a state of things amounts to ‘a determination’ of the action in favour of the plaintiff within the meaning of the condition.
“…Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour.”
Burnaby vs. Earle (1874) CR. 9 Q.B. 490, per Lush, J., at p. 493. “There is a … con in Chapter 3 of the Income Tax Act, 1952, which relates to ‘Appeals and Relief for Mistake’ and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ‘An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except…”
It is plain that there the words ‘determined’ and ‘determination ‘ are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment.” Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn, L.J. at p. 48
NEW ZEALAND – “Article 19 (of a partnership agreement) … says:
“upon the determination of the partnership the assets of the firm shall be realized.” The word “determination” appears to me to be used for ‘termination’, and usage shows that they are now used interchangeably.” Rushbrook vs. Bridgeman (1910), 29 N.Z.LR. 1184, per Stout, C.J., at p. 1189; also reported 13 G.L.R. 178, at p. 180.
DETERMINE:
“I doubt whether it is correct to say that, where, under a settlement, a person, Who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby ‘determines’ any provision of the settlement.
Be that as it may, it is, I think, clear that in the section under consideration (Section 38 (1)(a) of the Finance Act, 1938 (repealed; see now Section 38 (1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a settlement ‘by virtue or in consequence’ whereof a sum of money is payable by the ‘settlor or the wife or husband of the settlor’: and that the power to determine any other provision of a settlement does not bring it within the provisions of Section 38 (1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the provisions of the settlement in favour of the other possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of the provisions of settlement so determined would be treated as his income. It seems, I think, clear that the words ‘otherwise determine’ mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else.”
Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.
‘It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest cannot begin until it takes effect in possession, and from these premises the conclusion was adduced that the interests which were to determine… must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use of the word ‘determine.’ There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno flatu and at once. Obviously of those interests only one could be an interest in possession in any event; all the others must ex necessitate be interests in remainder or reversion. Therefore, if the use of the word ‘determine’ introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can ‘determine’.
If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests. Section 5(3) of that Act provides: ‘In the case of settled property, where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death.’ There is thus, at all events, Statutory authority, if authority be needed, for the view that an interest can be accurately described as ‘determining’ if it fails while it is yet reversionary in character.” Re Wilson’s Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, CA., per Jenkins, L.J. at p.961.”
The appellate and supervisory jurisdiction of the Court of Appeal in any dispute or controversy arising from proceedings conducted under Section 36(1) and 294(1) of the Constitution is governed in Section 294(2)-(3) of the Constitution to wit:
“(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.”
The legislature employed the words “opinion”, “decision”, “determine” or “determination” for a purpose. The Supreme Court’s definition of “determine”, ‘determination”, “decision”, etc. also reveals the legislature’s intention that any determination in the Court of Appeal is to be headed an opinion or a “decision” namely, that the dispute or controversy has been put to an end by the Court or other Tribunal established by law under Section 36(1) and 294(1) of the Constitution.
I am entitled to express an opinion or a “decision” in writing under Section 294(2)-(3) of the Constitution.
The parties before the High Court of Justice of Benue State Makurdi where proceedings were conducted (Exhibit “Al”) were:
“MRS. PRISCILLA AHURA & Anor .. Plaintiffs
And
ENGR IORAKAA IORHEMBA & 9 Ors Defendants.”
The proposed Notice of Appeal (Exhibit “A3″) sought the following reliefs against the respondents:
1. An order setting aside the order of the trial Court dismissing appellant’s application to amend and in it’s stead allowing the amendment, to enable appellants plead the defence of Statute bar against the counter-claim of the respondent.
2. An order considering appellant’s arguments on the issue of statute bar, and upholding the same as well taken.
3. An order setting aside the order of the trial Court dismissing respondent’s counter-claim and in it’s stead holding that same is incompetent being statute barred.
4. An order striking out the respondent’s counter-claim for being incompetent.”
The persons directly affected by the appeal were:
“AZAAGE AKUSE, Akuse Kough Village, Off New Bridge Road, Logo I, Makurdi.”
Azaagee Akuse (deceased) was the respondent in the Court below before his demise hence the need to substitute his name with Liambee Azaage, the right of action being land, having survived the deceased.
Order 15 Rules 1-3 of the Court of Appeal Rules 2016 provides as follows:
1. It shall be the duty of counsel representing a party to an appeal to give immediate notice of the death of that party to the registrar of the Court below or to the Registrar of the Court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.
2. Where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 10, be made in that behalf of the Court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.
3. Where an appeal has been set down for hearing and the Court is or becomes aware that a necessary party to the appeal is dead, the appeal shall be struck off the hearing list.”
The granting of this application is necessary to enable the family of the deceased to defend or prosecute the proceedings to finality. See Sogunle Vs. Akerele (1967) NMLR 58 at page 60 and Tewogbade vs. Akande (1968) NMLR 404
There is no merit in the objection raised by learned Counsel against the granting of these remedies. The objection is dismissed. The remedies are granted as prayed.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Ruling just delivered by my learned Brother, Joseph Eyo Ekanem, J.C.A., in determination of the application of the Applicants filed on 17/1/2019. I also allow the application in part and abide by the orders made in the lead Ruling.
Appearances:
F.M. Ebofuame Nezan, Esq. with him, Messrs A.M. Ewuga and S.M. OdoFor Appellant(s)
S.O. Okpale, Esq. with him, J.U. Ezeokafor, Esq.For Respondent(s)
