Ezekiel Isaiah & Anor V. Emmanuel Assor & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T. O. AWOTOYE, J.C.A (Delivering the Leading Judgment)

This is the judgment in respect of appeal against the judgment of High Court Rivers State sitting at Isiokpo delivered on 26/10/2005. At the trial court suit No. AHC/22/82 and suit No. IHC/56/90 were consolidated by order of court. The plaintiffs in suit No AHC/22/82 were made the plaintiffs in the consolidated suit and the defendants now the appellants became the defendant. The plaintiffs in the consolidated suit AHC/22/82 and IHC/56/90 were (1) EMMANUEL ASSOR and (2) DAVID OMAH (for themselves and as representatives of OBITI family in Umudioga Town in Ikwerre district of the Rivers State of Nigeria). See the judgment on page 41 of Record of Appeal.

Pleadings were exchanged, hearing commenced and judgment was later given in favour of the plaintiff on 26/10/2005.

The defendants being aggrieved by the judgment of the trial filed a Notice of Appeal making EMMANUEL ASSOR AND FESTUS EYIDIA the respondents. The appellants also listed the persons directly affected by the appeal as-

(i) Emmanuel Assor

(ii) Festus Eyidia

(iii) Akpelu Osodua

Obiti family was excluded.

The Respondents in this appeal, in their Respondents brief raised a preliminary objection submitted that the appeal is incompetent on the ground that the Respondents instituted the action at the lower court in a representative capacity and not in their respective personal capacity.

The appellants surprisingly in their reply to Respondents brief were silent on the preliminary objection which I shall first determine. See U.B.A. PLC V. ACB (NIG.) LTD (2005) 12 NWLR (pt. 939) 232, ABIOLA V. OLAWOYE (2006) 13 NWLR (PT. 996) 1.

A perusal of the record of appeal as well as the Notice of Appeal reveals that the names of the parties as per the record differ from the names on the Notice of Appeal filed by the appellants filed on 23/11/2005.

A notice of appeal is the foundation of the appeal. Any defect in the notice of appeal renders the whole appeal incompetent. See A.G. FEDERATION V. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT. 619) 187.

Order 6 Rule 2 (1) of the Court of Appeal Rules 2007 as well as Order 3 Rule 2(1) of the Court of Appeal Rules 2002 stipulates that the notice of appeal shall contain the names and addresses of all parties directly affected by the appeal. This is a mandatory requirement of the Rules. The Respondents in this appeal who were the plaintiffs at the lower court are OBITI family.

In LADEJOBI V. OGUNTAYO (2005) 7 WRN 22 at 41, the Supreme Court explained who the plaintiffs are in an action brought in representative capacity.