UNION BANK OF NIGERIA PLC. V. GARILLA LIMITED
(2012)LCN/5529(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of July, 2012
CA/PH/72/2008
RATIO
ACTION: ESSENCE OF MAKING A PERSON OR AN INSTITUTION A PARTY TO AN APPEAL
The law is very clear that the only reason which makes it necessary to make a person or an institution a party to an appeal is to make him or it to be bound by the result of the appeal. PER PAUL ADAMU GALINJE, J.C.A.
ACTION: HOW IS A NECESSARY PARTY DETERMINED
Therefore in determining who a necessary party is, the question is whether the appeal cannot be effectually and completely determined unless that person or institution is made a party. See UKU V. OKUMAGBA (1974) 3 SC 35; JIDDA V. KACHALLAH (1999) 4 NWLR (pt. 599) 426. PER PAUL ADAMU GALINJE, J.C.A.
COURT: ATTITUDE OF COURT TOWARDS THE RULES OF TECHNICALITY OVER JUSTICE
Indeed this decision is in accord with modern trend, where courts are enjoined to refrain from over indulgence to the rules of technicality at the expense of substantial justice.
In NWOSU V. IMO STATE ENVIRONMENTAL AGENCY (1990) 2 NWLR (PT. 135) 688 at 717, the Supreme Court, per Nnaemeka Agu JSC of blessed memory said:-
“As we have stated several times, the days when parties could pick their way in this court through naked technical rules of procedure the breach of which does not occasion a miscarriage of justice are fast sinking into Limbo of forgotten thins…..” PER PAUL ADAMU GALINJE, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC. – Appellant(s)
AND
GARILLA LIMITED – Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Ruling): By a motion on notice dated 26th of June, 2010 and filed on the 28th June, 2010, the Applicant herein asked the court to set aside the Notice of Appeal filed on the 31/7/2006 by the Appellant who is Respondent in this application for being null and void ab initio. The ground upon which this application is predicated are as follows:-
a) The Notice of Appeal which was filed by the Appellant contains the name of a non-juristic personality, a liquidated limited liability company and therefore akin to a dead person, thus rendering the said notice and grounds of appeal void ab initio.
b) Any process filed against a non juristic personality is void ab initio and therefore a nullity.”
This application is supported by an eight paragraphs affidavit deposed to by Foster Okeri, a solicitor in the law firm of E. B. Ukiri & Co., counsel for the Applicant Annexed to the application are the notice of appeal, subject matter of this application and enrolment order of the Federal High Court, Abuja in which National Fertilizer Company of Nigeria Ltd. (NAFCON) was ordered to be wound up.
At the hearing of the application, Mr. E.B. Ukiri, counsel for the applicant in his submission relied on all the paragraphs of the supporting affidavit, particularly paragraphs 3-7 and contended that the notice of appeal filed by the Appellant on the 31/7/2006 is invalid, void and of no legal effect because one of the parties to the appeal is non-juristic and therefore not competent to invoke the jurisdiction of the court. In a further contention, learned counsel submitted that once there is a defect in the notice of appeal at all, the court’s jurisdiction stands challenged.
In aid learned counsel cited CHIEF PETER AJAHAIYE & ANOR v. CHIEF AGBEBAIKU EDEHAI & ANOR. (1994) 8 NWLR (PT. 346) 504 at 533 paragraph B – C. Finally learned counsel urged this court to grant the application.
Mr. C. N. Nworka, learned counsel for the Appellant/Respondent who filed no counter affidavit elected to reply on point of law. In his argument learned counsel submitted that where there are parties to an appeal and one of them is incompetent, that is not enough to vitiate the notice of appeal. According to the learned counsel, where a dead party is included among the living and competent parties, the notice of appeal remains valid. In support of this submission learned counsel cited the authorities in AYOMINDE V. ONI (2000) 2 SCNJ I at 12 – 13; ADELAKUN v. ARUKWU (2006) ALL FWLR (PT. 308) 1360 at 1374, CHIME V. CHIME (2001) 5 SCNJ 12 at 22-23.
In a further argument, learned counsel submitted that the applicant cannot complain against including NAFCON in the notice of appeal since NAFCON was included in the processes for enforcement of judgment at the lower court long after it ceased to exist.
According to the learned counsel, a party cannot complain against a procedure he induced.
Finally learned counsel urged this court to hold that the notice of appeal is competent and to dismiss the application herein.
Order 15 makes provision for the death of a party to an appeal rule 3 of the said order provide as follows:-
“Where an appeal has been set down for hearing and the court is or become aware that a necessary party to the appeal is dead the appeal shall be struck out.”
However rule 2 of this order provides for substitution of dead party to an appeal. The situation at hand does seem to fall within the ambit of order 15, in that all appeals are by way of rehearing of the case that begun at the lower court. Where the only appellant or the respondent is dead, surely the appeal cannot go on because if the dead person is the appellant, no one will prosecute and enforce the decision if the appeal succeeds or in case of the respondent who is dead, there will be no defendant that will be held accountable. To that extent, the notice of appeal is irregular since there is no appellant or respondent to sustain the appeal. In that scenario the appeal is liable to be struck out in absence of substitution.
Where a dead party is joined with a living party on either side, the living parties can sustain the appeal even when the dead party is struck out, as a result of amendment to the notice of appeal. In other words the notice of appeal does not become incompetent by joining a deceased person with a party that is alive.
The law is very clear that the only reason which makes it necessary to make a person or an institution a party to an appeal is to make him or it to be bound by the result of the appeal.
Therefore in determining who a necessary party is, the question is whether the appeal cannot be effectually and completely determined unless that person or institution is made a party. See UKU V. OKUMAGBA (1974) 3 SC 35; JIDDA V. KACHALLAH (1999) 4 NWLR (pt. 599) 426.
In the instant notice of appeal, the necessary parties are Union Bank of Nigeria Plc as the appellant and Garilla Ltd. and Otumba Olusola Adekanola as the respondents. Even in absence of the National Fertilizer Company of Nigeria Ltd, the appeal can be sustained as the outcome of the appeal is capable of being enforced. Just as a single valid ground of appeal out of several incompetent grounds of appeal can sustain an appeal, so also a single competent party to an appeal which contains some incompetent can sustain such appeal.
In YAKUBU ABDULHAMID KWARA V. LAGI INNOCENT & 40 ORS (2010) 7 EPR 523, this court, per O.F. Omoleye at page 547 said:-
“By virtue of the provisions of order 6 rule 6 of the Court of Appeal Rules, a notice of appeal can be struck out if an appeal is found to be incompetent or for any other sufficient reason. However, if one or more grounds are found to be competent, the notice of appeal would be saved and the competent grounds can be argued.”
Indeed this decision is in accord with modern trend, where courts are enjoined to refrain from over indulgence to the rules of technicality at the expense of substantial justice.
In NWOSU V. IMO STATE ENVIRONMENTAL AGENCY (1990) 2 NWLR (PT. 135) 688 at 717, the Supreme Court, per Nnaemeka Agu JSC of blessed memory said:-
“As we have stated several times, the days when parties could pick their way in this court through naked technical rules of procedure the breach of which does not occasion a miscarriage of justice are fast sinking into Limbo of forgotten thins…..”
Clearly I have not seen where miscarriage of justice will be occasioned to the applicant/respondent if the notice of appeal is spared and the amendment that is sought by the appellant to have the name of NAFCON struck out from the notice of appeal is heard and granted. If nothing, such a step will be beneficial to both parties, as the hearing of the appeal expeditiously will be enhanced.
By order 6 Rule 2(1) all appeals are by way of rehearing the case that was decided at the lower court. A Notice of Appeal therefore that contains the names of the parties that commenced the case at the lower is not incompetent even though the party died before the appeal is filed.
It is the practice of the court to allow for substitution of the dead parties. It is therefore my firm view that the inclusion of a dead party in the notice of appeal may be irregular, but certainly such notice of appeal cannot be incompetent.
The application to strike out the notice of appeal herein is baseless, as the appellant had taken step to regularize the notice of appeal. Accordingly, the application herein is dismissed.
I make no order as to cost.
MUSA DATTIJO MUHAMMAD, J.C.A.: I agree.
TUNDE OYEBANJI AWOTOYE J.C.A.: I entirely agree.
Appearances
Appellant absentFor Appellant
AND
E.B. Ukiri with A.F. Emariwe and B. ClementFor Respondent
