Christopher Ede V. Ogenyi Nwidenyi & Ors. (1988) LLJR-SC

Christopher Ede V. Ogenyi Nwidenyi & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C. 

On the 5th of October, 1988 this court granted the application of the applicants for leave to appeal against the judgment of the Court of Appeal, Enugu dismissing their appeal from the decision of the judgment of the High Court of the East Central State, holding at Enugu on the 7th January, 1974

On 7th January, 1974, J.A. Phil-Ebosie, J. (as he then was) in Suit No.E/96173 dismissed the action of the Appellants, who had sued the defendants claiming as follows –

“(a) A declaration that the people of Amaofia village are absolute owners of the piece and parcel of land known as Ugwuegbe the boundaries of which are verged in pink on the plan No. E/GA.154/M filed with his statement of claim.

(b) 500 pounds damages for act of trespass committed by the defendants on the said land.

(c) An order for an injunction restraining the defendants their agents, servants and privies from further interference with the plaintiffs’ possession of the said land.”

Appellants were represented by Christopher Ede, who instituted the action in his own name and on behalf of Amaofia Village. The present applicants are members of Amaofia Village. The appeal against the judgment was not heard until the 11th March, 1986, when it was dismissed by the Court of Appeal for failure to file briefs of argument. On the 20th April, 1987 more than one year after, Plaintiffs applied to substitute other members of Amaofia Village for Christopher Ede who was alleged to have died in August, 1983. This was necessary to enable Plaintiffs give notice of Appeal against the dismissal of the Appeal.

In November, 1987 the Court of Appeal dismissed the application on the ground that the appeal having been dismissed, there was no lis before it in respect of which applicants could be substituted. The applicants appealed to this Court against the judgment of the Court of Appeal. On the 18th April, 1988 counsel withdrew the appeal which was accordingly dismissed. On the 20th April, 1988 the applicants brought the present application seeking the following orders-

“(a) granting the applicants an enlargement of the time within which to apply for leave to appeal from the judgment of the Court of Appeal, Enugu Division, in Appeal No. FCA/E/148/81 as persons having an interest in the matter;

(b) leave to appeal from the said judgment as interested persons; and

(c) leave to appeal on mixed law and fact from the said decision of the Court of Appeal, Enugu Division.

And for such further and/or other order as to the court may seem fit.”

Thus this application is concerned ONLY with the above prayers, and not with the determination of the proposed substantive issue in the proposed appeal against the dismissal of the appeal to the Court of Appeal by the Plaintiffs of the judgment of the Enugu High Court in Suit No. E/97/73. In support of this application applicants have filed an affidavit, the judgments in the High Court, and the Court of Appeal which are annexed as Exhibits A and H. Also annexed are correspondence between their counsel and the Registry of the Court of Appeal Enugu as Exhibits C.E.F. The judgments of the Court of Appeal dated March 11, 1986 as Exhibit D and November, 12, 1987 as Exhibit H. Also annexed are Motion on Notice resulting in Exhibit H, as Exhibit G; and the Judgment of this Court dated April 18, 1988 as Exhibit I and the proposed notice and grounds of appeal Exh. “J”

Applicants have filed a further affidavit in support of the motion before us. Respondents have also filed an affidavit and a supplementary counter affidavit dated 17th August, 1988.

I have referred to these documents because both counsel relied on them extensively in their arguments. Both counsel also filed briefs of argument which they adopted in their oral argument and expatiated on areas which seemed to them needed explanation.

There are two different formulations of the questions for determination in this application. Mr. Anyamene S.A.N. for the applicants has formulated the issues as follows:-

(a) whether the judgment of the Court of Appeal was a nullity on either or both of the two grounds postulated;

and

(b) Even if it was not a nullity, whether the judgment can be supported for the reason given by the Court of Appeal, namely, Failure to file brief.

As I have already stated above the application before us is for leave by the applicants as persons interested to

(i) apply for enlargement of time to apply for leave to appeal.

(ii) leave to appeal

(iii) leave to appeal on mixed law and fact from the decision of the Court of Appeal, Enugu Division dated 11th March, 1986.

Applicants are now relying on section 213(5) of the Constitution 1979. It is pertinent to observe that applicants in this application are not the same persons as those who unsuccessfully applied to the Court of Appeal and whose appeal to this Court was dismissed after having been withdrawn on the 18th April, 1988. The two issues formulated by appellants seem to me more appropriate as issues for determination of the appeal itself.

I think the formulation of the issues for determination by Dr. Ibik, counsel to the Respondents is more consonant with the prayers in the application before us. I shall adopt them in the determination of the application. They are as follows-

“1. Whether the applicants (or either of them) qualify as “any other person having an interest in the matter” as contemplated by S.213(5) of the 1979 Constitution.

2. If so, whether the applicants have demonstrated good and substantial reasons for failing to obtain leave to appeal within the prescribed period.
3. And if so, whether the proposed grounds of appeal prima facie show good cause why the appeal should be heard”

The determination of this application has been complicated and befogged by numerous factual situations which ordinarily should not have such effect. For instance Exhibit D. the judgment of the Court of Appeal of the 11th March, 1986 and the various averments in the affidavits of the parties raise considerable doubt as to the position of the action as at 11th March. 1986 when the Court of Appeal dismissed the appeal for want of prosecution because Appellants failed to file their brief of argument. The critical element actually came to the fore when Plaintiffs wanted to substitute members of the community represented by Christopher Ede and were met with the proposition that there was no lis before the Court in respect of which they could be substituted.

We are now faced with the determination whether applicants who are the members of the community represented by Christopher Ede, cannot appeal against the judgment of the Court of Appeal as persons interested by virtue of section 213(5) of the Constitution 1979. They have failed in their attempt at substituting other members of the Amaofia Village represented by Christopher Ede. The relevant part of section 213(5) provides as follows-

“Any right of appeal to the Supreme Court from decisions of the Federal Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of the party thereto, or with the leave of the Federal Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter ….”

It is important to set out some of the accepted facts of this application. It is common ground and not in dispute that

(i) Christopher Ede instituted the action in a representative capacity, representing the people of Amaofia Village.

(ii) The averments in paragraph 1 of the affidavit of applicants in support of the motion sworn to by Oghuzuru Ugadu, on the 10th June, 1988 that the deponent and Olinija ado Ukpurueke, 1st and 2nd applicants are members of Amaofia Village, Eha-Amufu, has not been contradicted.

(iii) That Christopher Ede is dead.

(iv) Paragraphs 2, 3 and 4 of the affidavit of June, 10, 1988 unequivocally declare that the two applicants with other members of the village authorised Christopher Ede to institute the action Suit No. E/96/63 in a representative capacity, on their behalf as the sole named party on record.

Dr. Ibik for the Respondents whilst admitting these facts submitted to us both in his brief of argument and orally that since the two applicants as members of Amaofia Village were represented by Christopher Ede, they are not entitled to exercise the right of appeal, with leave, as “person or persons having an interest in title matter” within the meaning of that expression in section 213(5) of the Constitution 1979. In construing the section Counsel drew from Section 117(6)(a) of the Constitution 1963 which is in pari materia with Section 213(5) and the judgment of this Court in Chief Ojogho Olaja-Oriri & anor. v Itsekiri Communal Land Trustees & ors. (1973) 1 All NLR (Pt.11) 272. at p.281. Counsel also cited and relied on the Court of Appeal decision in Olaitan Dairo v Raufu Gbadamosi, In re Alhaji Lamidi Afolabi (1987) 4 NWLR. (pt.63) 18. The contention of counsel for the Respondent Dr. Ibik is that to qualify as “any other person having an interest in the matter,” the applicant must not have participated in the case either as a named party or as an unnamed party, It was submitted that applicants who were parties in a representative capacity were totally disentitled to be granted leave under section 213(5) of the Constitution 1979. Counsel concluded they may have other remedies, but certainly not this. There is no doubt that the remedy of applicants now rests entirely on the interpretation of section 213(5) of the Constitution 1979 and the expression “any other person having all interest in the matter.” It cannot be disputed that applicants being members of Amaofia Village, who authorised Christopher Ede to institute the action now dismissed on appeal, are in the ordinary sense persons who have an interest in the matter. The expression which appeared in identical words in Section 117(6) of the Constitution 1963 has been subject-matter of interpretation in our courts. The issue is whether they can exercise the right of appeal provided under Section 213(5). It seems that before the Constitutional provisions, there were no provisions in our rules enabling persons interested who wish to question an adverse judgment to do so, For instance in Johnson v Aderemi (1955) 13 WACA. 297 Lord Radcliffe delivering the advice of the Judicial Committee of the Privy Council said;

“….it seems an obviously convenient course that persons interested who wish to question a judgment affecting their interest, as the respondents did, should be enabled to carry the judgment to appeal without going through the more elaborate course of starting new proceedings with the necessity of a fresh trial.”

The crux of the interpretation lies in the determination of the expression of “any other person having interest in the matter.” Who then is such other person Counsel to the respondents has submitted it does not include parties to the action, i.e. persons who were represented in a representative capacity. He submitted that such persons were parties even if unnamed and were not contemplated by the constitutional provisions. With due respect the decision of this Court in Chief Ojogbo Olaja-Oriri & anor v Itsekiri Communal Land Trustees & ors. (supra) and the views of Fatayi-Williams JSC referred in do not entirely support the proposition.

In that case appellants were in the case from the beginning as named parties. They were by order of court replaced by other sets of defendants and advised to apply to join as defendants. They declined to do so and did not appeal against the order replacing them. They stood by and watched the proceedings to its end. They then brought an application under section 117(6)(a) seeking leave to appeal against the decision as “interested persons.” In refusing the application the Court, after reproducing the section said;

“The phrase “at the instance of any other person having an interest in the matter” is clearly not intended to apply to a person who stands by and allows his battle to be fought, to his knowledge and on his behalf, by other members of his community and who then applies, because he does not like the judgment, for leave to appeal against it….”

It seems obvious from this dictum which is governed by the facts of this case where the persons who brought the action became estranged from their community and decided to stand by awaiting the result of the litigation, they were disqualified by their conduct despite the fact that they were persons who could he regarded as interested. As was pointed out in that case, to claim to be “interested persons” as they have successfully done in this case, “is a gross abuse of the process of the court and contrary to the purpose and intent of section 117(6)(a) of the Constitution. Thus a person who stands by and lets other members of the community get on with the litigation cannot even if a member of the community, apply for leave to appeal against the result of the litigation. What then is the purpose and intent of the section

It is conceded that the law is well settled that the approved representative in a representative action, who is the named party, is not the only party to the action. All the others who are not named but are represented are also parties to the action and are bound by the result – See Otapo v Sunmonu (1987) 2 NWLR. (pt.58) 587, Moon v Atherton (1972) 3 All ER. 145, Price v Rhondda Urban District Council (1923) All ER Rep. 679.

Similarly settled is the meaning of the expression “any other person having an interest in the matter.” Although conveying the same meaning as the phrase “person interested” which has been defined in Stroud’s Judicial Dictionary (3rd Edn.) 1953 and Burrow’s, Words and Phrases Judicially Defined (1944), as our own provisions.

The expression under section 117(6)(a) of the Constitution 1963, which is in pari materia with sections 213(5), 222(a) of the Constitution 1979 appear to me to relate to the exercise of the right of appeal of parties and other persons and to be more specific and related to the matter in issue. In this case there is a logical and direct grammatical nexus with the specific subject matter which assists in explaining the nature of the interest.

This is necessary to circumscribe that many meanings of the word “interest” in the English language which are discernible from con and to limit to the kind of interest contemplated under the provisions of the Constitution. With respect to the exercise of the right of appeal, the interest contemplated can only be that of those directly and not obliquely affected by the adverse decision. It cannot be a general interest which every person has in seeing that justice is done to a party- See Smith v Hancock [1894] 2 Ch. 377 at p.386 Re Rochampton Swimming Pool Ltd. [1968] 3 All ER. 661.

It may be helpful to trace our judicial attitude to applications of this kind. It is convenient to start with Johnson v Aderemi (1955) 13 W.A.C.A. 297. Here, two children born out of wedlock, were challenging the letters of administration issued against proof of the will of the testator. The Court found the Will of the Testator to be invalid and declared the testator had died intestate. The West African Court of Appeal allowed parties to be added as appellants who were not parties to the original suit, reversed the judgment of the Supreme Court and pronounced the Will to be valid.

Plaintiffs appealed arguing that the West African Court of Appeal had no power to add as parties to the appeal persons who were not parties to the original action. Dismissing the appeal on the ground that there was insufficient evidence to pronounce the Will to be invalid, the judicial Committee of the Privy Council also pronounced on the correctness of adding persons on appeal who were not parties to the original suit.

Their Lordships stated that in the absence of an applicable rule in the rules of practice of the West African Court of Appeal, 1950 the Court properly resorted to the general authority of rule 42 of those Rules which enabled recourse to the procedure and practice of the Supreme Court in England.

They said,

“There is no doubt that generally speaking, it is the practice of the Court of Appeal in England to allow a person who might have been a party to a suit to conduct an appeal against a judgment that affects his interest and to be added as a party for this purpose. (See Annual Practice, 1954, p.1244).”

Their Lordships went on specifically to refer to the contention before them that since the applicants were not persons who would be bound by the judgment not being in Nigeria at the time the action was taken, they should not have been added as parties at that stage but left to bring fresh action to establish the will and codicil if they so desired. To this submission their Lordships rejecting the distinction said, at p.299

“…it seems an obviously convenient course that persons interested who wish to question a judgment affecting their interests, as the respondents did, should be enabled to carry the judgment to appeal without going through the more elaborate course of starting new proceedings with the necessity of a fresh trial at first instance.”

There is no doubt on the evidence that the added parties, were the children, albeit illegitimate, of the testator and were persons interested in the judgment.

In 1964, this Court was invited in Ozomagbo Ubagu & ors v Chief Ozonechi Okachi & ors. (1964) 1 All NLR. 36 to decide the appeal by parties, the Awka people who considered themselves affected by a judgment against persons who did not defend the action in a representative capacity, although the defendants in the suit were known to be fighting the battle of the Awka Community. The Supreme Court not proposing to vary the judgment of the High Court said.

“If any of the other people of Awka consider themselves aggrieved by the order of the High Court, they are persons having a right of appeal under section 117(6)(a) of the Constitution of the Federation, it is for them to exercise that right if they wish to obtain a variation, in the judgment of the High Court.”

It is obvious from this judgment that the Court recognised the status of represented parties as unnamed parties, and their right to bring an appeal against the judgment in a case in which they were hitherto represented. The Court considered their right of appeal as independent from that of the representative or the named defendant when it said;

“The cases of Anlaby v. Praetorius (1888) 20 QBD. 764 and Hughes v. Justin [1894] 1 QB. 667 on which Mr. Araka for the appellants relied, are not an authority for saying that a named defendant may appeal for the purpose of protecting the interest of a third party who has an independent right of appeal.”

In Sun Insurance Office Ltd. v. Ojemuyiwa (1965) 1 All NLR. 1. the Insurance Company applied for leave to appeal against the judgment of the High Court for #8,500. The Court dismissed their motion to set aside the judgment for damages against a lorry owner who was held liable in damages for killing Mr. Ojemuyiwa, the husband of the Plaintiff. The lorry owner, Mr. E. O. George, who insured with the insurance Company did not appear and did not want to appeal. The High Court refused the application on the ground that the Insurance Company were not parties to the action. They then applied to the Supreme Court. In an action against the Insurance Company, by the successful Plaintiff, claiming the damages awarded against Mr. George they denied liability, pleading that the were not parties to that action. The motion aforesaid was to strike out this action. Leave having been refused by the High Court they applied to the Supreme Court for leave to appeal as interested person under section 117(6)(a) of the Constitution of the Federation.

Section 117(6)(a) considered states-

“Any right of appeal to the Supreme Court from the decisions of the High Court of a territory conferred by this section – (a) shall be exercisable in the case of civil proceedings at the instance of a party thereto; or with the leave of the High Court or the Supreme Court at the instance of any other person having an interest in the matter…”

In construing this section the court referred to the phrase “at the instance of’, and adopted the concise Oxford Dictionary meaning, which means “at the request of,” or “at the suggestion of.” The court considering the other condition of “any other person having an interest in the matter referred to the contention that the Insurers have no interest in the matter and said: at p.4,

“It strikes us that the argument is very much like the dissenting judgment of Slesser. L.J. in Windsor v. Chalcraft (supra); we think that the majority judgment of Greer LJ. and Mackinnon L.J. is to be preferred, and accept the Insurer’s claim that they have an interest in the matter which enables them to apply for leave to appeal, which they should he given if there is no cogent reason to the contrary.”

It is difficult to come to any conclusion other than that the Insurance Company which is liable for the damages against Mr. George, the Lorry owner, is a person interested in the judgment against Mr. George.

The case of Jarmakani Transport Ltd v Alhaji Kalla (1965) 1 All NLR. 77 is different. In this case Jarmakani Transport Ltd. was liable to Alhaji Kalla in an accident involving the lorries of the parties. Jarmakani Transport Ltd. had insured his vehicles with the British India General Insurance Co. Ltd. Alhaji Kalla asked Jarmakani Transport Ltd. to pay for the cost of the repairs to his vehicle. Jarmakani Transport Ltd. in turn asked their Insurers to pay, who repudiated. Alhaji Kalla brought an action against Jarmakani Transport Ltd. who were found liable, but appealed against the judgment. Alhaji Kalla subsequently in enforcing the judgment took out a writ of attachment on some of the vehicles of Jarmakani Transport Ltd; who came to terms with Alhaji Kalla, paid 1,500 pounds at once out of the damages awarded against them and agreed to pay the balance of 1,110 pounds in four instalments in complete satisfaction. Alhaji Kalla was to give up attachment of their vehicles and they were to abandon their appeal against the judgment.

In a subsequent arbitration between Jarmakani Transport Ltd. and their Insurers, which was in favour of Jarmakani the Insurers paid Jarmakani the damages and costs awarded against them in the action brought by Alhaji Kalla. The Insurers thereafter relying on a letter of subrogation earlier given to them by Jarmakani brought a motion for leave to appeal against the judgment against Jarmakani.

It is important to mention at this stage that Jarmakani had told the Insurers that they were not interested in prosecuting the appeal they had filed since they had paid Alhaji Kalla. Nevertheless the Insurers brought this application on the 20th January, 1965 “for an order pursuant to section 117(6)(a) of the Constitution of the Federation that the British India General Insurance Company Limited may exercise the right of appeal against the decision of the High Court of Lagos dated the 20th November, 1961 in this action or for such other order or orders as may be just. The applicant relied on the earlier decision of the Court in Sun Insurance Office Ltd. v Ojemuyiwa (supra).

The Court distinguished this case from the Sun Insurance Office Ltd. case, and referred to several defects both in the motion and supporting affidavit and held that the Insurers want an order to prosecute the appeal already discontinued by Jarmakani because they argue they stand in their shoes. The Court then in dismissing the application said, at p.79

“….. in any event it would be contrary to the spirit of section 117(6)(a) of the Constitution of the Federation to authorise a person to prosecute an appeal in the name of a party who does not wish to go on with his appeal.”

Their Lordships continued,

“If there is to be an appeal at all, it must be in the name of the Insurers as the appellants by leave of court coupled with an extension of time, but the notice of motion does not apply for either leave or extension, and either for this reason or for the former one this application must be refused.”

The issue whether the Insurers fall within the meaning of “any other person having interest in the matter” was taken for granted as it was evident they were. The Sun Insurance Office Ltd. v Ojemuyiwa (1965) All NLR. 1, was followed in Oloko v. Arogbo (1968) NMLR. 68 where the question was whether section 117(6) applied to interlocutory decisions of the Court.

And it was whether a person who has an interest in a matter although not a party to the suit could ask for leave to appeal against an interlocutory order made against a party to the suit The learned Judge Sowemimo J (as he then was) answered the question he posed in the affirmative relying on the definition of the word “decision” in section 117(7) of Decree No.1 of 1966.

The application for leave to appeal against a ruling of the High Court refusing to grant an extension of time within which the defendant could file his defence was made under s.21(2) of the Federal Supreme Court (Miscellaneous Provisions) Act No. 47 of 1961 by persons who were not parties to the action.

Counsel however, relied on the provisions of section 117(6)(a) of the Constitution that they have an interest in the matter. The provisions of section 117(6)(a) of the Constitution 1963 is in pari materia with sections 213(5) and 222(a) of the Constitution 1979. I have already reproduced sections 117(6)(a) of the Constitution 1963 and section 213(5) of the Constitution 1979. For case of reference I reproduce also section 222(a) which is as follows

“222. Any right to the Federal Court of Appeal from the decisions of a High Court conferred by this Constitution –

(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the High Court or the [Federal] Court of Appeal at the instance of any other person having an interest in the matter……….”

In Ikonne v. C.O.P. & Nnanna Wachukwu (1986)4 NWLR. (pt.36) 473, Aniagolu JSC reading the Lead judgment of the Court construed the expression “interest” in the section to mean a legally recognisable interest, and cited Ubagu & ors. v. Okachi & ors. (1964) All NLR. 36 in support. Taking into consideration the facts of Ikonne v. C.O. P. & Nnanna Wachukwu (supra), he held at pp. 497-498 that-

“The spirit of the provisions of section 222(a) of the 1979 Constitution cannot accommodate the malicious interest of the Respondent as a recognisable interest under the section, in issuing the warrant of arrest to satisfy his private vengeance or to even out scores with his old enemy – the appellant. The malice destroys the legality of the interest which interest, upon public policy cannot be recognised by the Courts”

Concisely stated the interest which will support an application under the provision must be a genuine and legally recognisable interest, in respect of a decision which prejudicially affects such interest- See In re Reed Bowen & Co. Ex p. Official Receiver (1887) 19 QBD 174 at p. 178, A-G. for the Gambia v. Njie (1961) 2 All ER. 504. In Dairo v. Gbadamosi, In re Afolabi (1987) 4 NWLR. (pt.63) 18, applicant was affected by the judgment of the High Court in favour of the Plaintiff wherein the defendant applied for and was granted a stay of execution restraining the Plaintiff from demolishing the buildings on the land.

It was also ordered that the rent payable by the tenants in the building of the applicant be paid into the Court. Applicant was unaware that there was a dispute involving his building. On becoming aware of the decision he brought this application as an interested party under section 222 of the Constitution 1979 and Order 3 rule 4(1) of the Court of Appeal Rules 1981 praying the Court for (a) leave to appeal against the judgment etc. Applicant was never a party to the action and was not put on notice at any stage of the proceedings. It is also not in dispute that he built on one of the plots in controversy, which has been completed and is occupied. Ogundare JCA, considering these facts said; at p. 28-

“The only reasonable inference, in my respectful view, to be drawn from both the judgment and the order for stay is that applicant’s interests are affected by both. He is therefore, a “party interested” within the meaning of section 222 of the 1979 Constitution…”

It follows therefore from the above decisions that an unnamed defendant who is represented in an action by another, See Ubagu & ors. v. Chief Okaehi & ors. (1964) 1 All NLR. 36, (b) any person even if not a party who can show that he has a legally recognizable interest which is prejudicially affected by the decision – See In Re Afolabi (1987) 2 NWLR. (pt. 63) 18, Ikonne v. C.O.P. & Nnana Wachukwu (1986) 4 NWLR. (pt. 36) 473 can apply for leave to appeal against the decision within the meaning of section 213(5) 222(a) of the Constitution 1979.

The application must be in the name of the party interested whose said interest is prejudicially affected by the decision sought to be set aside, An application in the name of an unwilling party and who actually has indicated his intention to discontinue the appeal is not within the section – See Jarmakani Transport Ltd, v. Alhaji Kalla (supra). So are persons who stand by to let others fight their case, A party who has shown no interest cannot be joined- See Shonekan v, Smith (1964)1 All NLR. 168. On the facts of the instant case, applicants being members of the Amaofia Village, who were represented by Christopher Ede, are some of the unnamed Plaintiffs who would be affected by the dismissal of the appeal filed by Christopher Ede.

Dr. Ibik has submitted on behalf of the Respondents that being parties, whether named or unnamed applicants were bound by the decision of the Court of Appeal dismissing the claim, It seems to me that the argument assumes that the decision constitutes res judicata between the parties. I do not think that view is correct, The litigation between the parties is still continuing, and the adverse party is entitled to carry it on till the hierarchy of appeal is exhausted. The binding nature of the decision only comes to be considered as between the parties when any of the parties sues or is sued in a fresh action. I agree entirely with the opinion of Ogundare J.C.A. in Re Afolabi (supra) in answer to the submission in that case as was submitted before us by Dr. Ibik, that applicants being privies are incompetent to bring the action under section 213(5). He said, at p.31;

“Assuming it is correct to say that applicant is a privy to the defendant, this cannot preclude him from seeking leave to appeal under section 222 of the Constitution. In fact, by being privy he must be a “party interested.”

I am of opinion therefore that applicants are persons having interest in the matter within section 213(5) of the Constitution 1979 and are competent to bring the application for leave to appeal against the judgment, as persons interested.. I shall now consider the conduct of applicants in the effort to bring the application after being aware of the consequences of the death of their sole representative, Christopher Ede. It is relevant to refer to the affidavits in support of the application which contain the necessary averments. Paragraphs 4, 6, 7, 8, 9, 10, 11.

“4. Christopher Ede on behalf of the members of Amofia Village appealed against the judgment on 5th April, 1974. A copy of the notice and grounds of appeal is attached hereto and marked Exhihit B. The conditions of appeal were fulfilled within time.

6. Christopher Ede died in 1983 around Easter.
7. My father, accompanied by me and my brothers, attended the burial of the said Christopher Ede with burial cloth for covering the body of the deceased in accordance with custom and I saw the corpse of Christopher Ede committed to earth.
8. For a long time after filing the appeal the said Christopher Ede used to go to the community’s lawyer in Enugu at our expense at intervals only to return to tell us that the lawyer said the appeal was not ready for hearing.
9. After the death of Christopher Ede the members of Amofia Village including me heard nothing about our appeal until about January, 1987. when the respondents paraded through the only main road passing through our two villages with the band of their village school rejoicing that we had lost the appeal we filed thirteen years earlier.
10. The members of Amofia Village held a meeting hurriedly arid sent three persons who could find their way to trace our lawyer and ascertain what happened.
11. The delegates reported to us that they met the said counsel on their third visit to Enugu and informed him of the respondents’ jubilation and of the death of Christopher Ede.”

It is obvious from these averments that although applicants were aware of the death of Christopher Ede in August, 1983, they did nothing towards filling that vacuum until they were waken almost 3 1/2 years after by the jubilation of their opponents that they had lost the appeal. This is what Dr. Ibik of counsel to the Respondents described as standing by. He has argued that as at August, 1983 the appeal in the Court of Appeal, FCA/E/148/81 subsequently dismissed was still pending in that court and that the applicants with knowledge of the death of their sole plaintiff should have applied to substitute another person for deceased Christopher Ede. This they did not do. It was also submitted that Christopher Ede being the link between them and their solicitors, they ought to have as reasonable diligent litigants been apprehensive and found a substitute to ensure continuity. In answer to this criticism Mr. Anyamene S.A.N. for the applicants referred to the correspondence between himself and the court requesting for direct service of process on Christopher Ede and the reply of the Court, in Exhihit C. dated 22nd June, 1983 before the death of Christopher Ede because he lost contact with him, he submitted, as to physical communication problems.

The attitude of the applicants towards the effect of the death of Christopher Ede, on their appeal is disclosed in paragraphs 23, 24. 25 and 26 of the supporting affidavit dated 10th June, 1988 which aver as follows-

“23. We had no knowledge that the appeal filed on behalf of the villagers of Amofia by Christopher Ede had never been called up in the Court of Appeal.

24. Our experience in the customary court is that parties to a suit must be served with hearing notices before their case is tried. We did not know that the position in the Court of Appeal was not the same.
25. We did not notify our lawyer of the death of Christopher Ede. We did not know that his death posed any problem as the action was by the whole villagers of Amaofia who used the name of Christopher Ede to sue the defendants.
26. Our said counsel informed us that following the statement in the short record of the proceedings in the court of appeal of 11th March, 1886, that hearing notice for that date was served on him despite his letter to the Registrar (Exhibit C), he made further enquiries and discovered that a court bailiff swore to an affidavit that he served the hearing notice on junior counsel in his chambers who came to the registry to transact some other business on 20th August, 1985, during the vacation,”

Mr. Anyamene pointed out that it is evident from Exhibit F that the appeal did not come up for hearing after 1st July, 1983 when it was first called up and no order was made until the appeal was dismissed on the 11th March, 1986, It was submitted that it could he inferred from Exhibits E and F that no order for service of hearing notice was made personally on Christopher Ede or on his counsel inspite of Exhibit C, before the appeal was dismissed for failure to file appellants’ brief. Counsel cited and relied on Obimonure v. Erinosho (1966) 1 All NLR. 250-253 in support of the consequences of the failure to serve hearing notice.

Dr. Ibik after pointing out lapses in the averments in the supporting affidavit such as date of service on counsel of hearing notice, the hearing notice itself not exhibited and the conflict between the reason given for returning the hearing notice and the averments in the supporting affidavit, referred to the averments in paragraphs 12, 13, 14. 15 and 30 of respondents’ affidavit for the averments that they became aware of the appeal in April, 1987 when the motion for substitution Exh. G was served on them. He therefore submitted that in view of the unexplained lapses, applicants have failed to discharge the onus on them to explain the delay.

I do not think it is correct to say that applicants have not explained the delay. In addition to the averments in the supporting affidavit and Exhibits C, E and F annexed, it is pertinent also to refer to the affidavit of the respondents which essentially supports the contention of the applicants that they did not receive any hearing notice of the hearing of the appeal before it was dismissed on 11th March, 1986. Paragraphs 12, 13, 14, 15, 16 of the affidavit of the Defendants/Respondents aver as follows –

“12. That I verily believe that the Notice of Appeal (referred to as Exhibit B in the said affidavit) was served on our said counsel.

13. That I did not know about the said appeal which was then pending before the Court of Appeal nor did I attend the proceedings thereat.
14. That to the best of my knowledge and belief none of the other defendants/respondents in the said proceedings before the Court of Appeal knew about the same.
15. That neither myself nor the other surviving 1st defendant/respondent afore-mentioned knew about the dismissal of the said appeal per the judgment of the Court of Appeal (referred to as Exhibit D in the said affidavit).”

Particularly relevant is paragraph 16 which avers,

“16. That since the date of the judgment of the trial court (per Exhibit in the said affidavit) neither myself nor any of the other defendants/respondents supra was personally served with any court process in connection therewith until sometime in April, 1987 when a copy of the Motion Paper (referred to as Exhibit G in the said affidavit) was delivered to the 1st defendant/respondent by the court bailiff.”

These averments corroborate the averments in paragraph 9 of applicants’ affidavit which states –

“9. After the death of Christopher Ede the members of Amofia village including me heard nothing about our appeal until about January, 1987 when the respondents paraded through the only Main road passing through our two villages with the band of their village school rejoicing that we had lost the appeal we filed thirteen years earlier.”

It is not disputed that the appeal was dismissed on 11th March, 1986 and both applicants and respondents have claimed not to have been served with notice of hearing date. It is therefore legitimate to infer in such a circumstance that none was sent. Furthermore, although the appeal was dismissed on March, 11, 1986 it was only sometime in January, 1987 that applicants got to know about it through the jubilation of the respondents. Applicants then brought an application on the 30th of March, 1987 to substitute other members of the community to enable them continue the proceedings – See Exhibit G. They have since not relented in their effort despite the legal difficulties in their way. In the circumstances it will be unfair and unappreciative of the efforts of applicants to say that they delayed in bringing their application. In my opinion they have done so timeously.

Dr. Ibik appears to have reckoned the delay from the date applicants was aware of the death of Christopher Ede their named representative. This was going by the affidavit of applicants, about Easter 1983. The disqualifying delay can only he reckoned from the date of the judgment. when the right to appeal against which leave to appeal is being sought accrued. In this case it is March 11, 1986. The fact that hearing notice was not sent to either of the parties to the appeal, and that applicant became aware of the dismissal of the appeal in January, 1987, appears to me sufficient explanation why applicants cannot be accused of delay or standing by.

Applicants have in their grounds of appeal alleged that the judgment of the Court of Appeal dated March 11, 1986 is a nullity. Mr. Anyamene has relied on the fact that Christopher Ede, representing applicants died around Easter, 1983 about three years before the hearing of the appeal, and accordingly the judgment was a nullity. He cited Opebiyi, Osoboja (1976) 9 & 10 SC. 195. Counsel recounted the fact that no hearing notices were served on applicants, before the appeal was dismissed. It was submitted on the authority of Obimonuure v Erinosho (1966) 1 All NLR. 250 that absence of the service of hearing notice in this circumstance is a fundamental vice and the party affected is entitled ex debito justitiae to set the judgment aside. Dr. Ibik in his reply has argued in the alternative. He submitted that although applicants’ averred in their affidavit that Christopher Ede died around Easter 1983, there was the averment in respondents counter affidavit and further counter affidavit that Christopher Ede died in August, 1973 before the filing of Exhibit 13, the notice of Appeal. It was argued that Exhibit 13 was prepared in the name of and signed on behalf of Christopher Ede. This it was submitted supports the suggestion that Christopher had died when the notice of Appeal was filed. Thus since a dead person cannot file a notice of appeal, the notice of appeal filed in his name is invalid, and the judgment appealed against stands without an appeal. – See Ezenwosu v. Peter Ngonadi (1988) 3 NWLR. (pt. 81) 163. Alternatively even if it is conceded that Christopher Ede died in Eastcr 1983, and being the only named Plaintiff, as the only appellant, the appeal did not lapse on his death. Citing Otapo v. Sunmonu (1987) 2 NWLR (pt. 58) 587, it was submitted their being OTHER MEMBERS OF Amaofia Village, the real party did not cease to exist.

The appeal before us though having features of earlier decisions is different in certain respects. Like Opebiyi v. Oshoboja (1976) 9 & 10 SC. 195, it was unknown to the court that the Plaintiff was dead. Unlike that case, apart from the named plaintiff who represented the Members of Amaofia Village, there are the unnamed plaintiffs, who Christopher Ede represented and who were entitled on his death to be substituted or to apply to appeal as interested persons. Again, the Opebiyi v. Oshoboja situation did involve defendants in a representative capacity and no defendants having been substituted the order made was against dead or non-existent persons, and accordingly void – See Nzom v Jinadu (1987) 1 NWLR (pt. 51) 533

I have already dealt with the question of the service of the hearing notice and held that the evidence is that neither of the parties was served. In Ezenwosu v. Ngonadi (1988) 3 NWLR (pt. 81) 163, Plaintiff on 4/3/77 obtained judgment in the High Court for a claim for a declaration of title to a piece of land and injunction. Defendant’s counsel filed a notice of appeal against the judgment on 7/3/77. It was subsequently discovered that the defendant had died on 4/3/77. On 13/6/83 six years later, plaintiffs counsel in a preliminary objection applied to strike out the appeal on the ground of incompetence having been brought in the name of a dead person. The Court of Appeal struck out the appeal on this ground. A further application brought by the son of the deceased Peter Ngonadi on 9/8/83 to relist the appeal and substitute himself was also struck out for want of prosecution” A further application was granted. On appeal to this Court against the judgment of the Court of Appeal seeking leave of this court it allowed the appeal and reversed the Court of Appeal. It was pointed out that although a deceased party cannot file a notice of appeal, not being a juristic person, this did not extinguish the right of appeal. Accordingly whoever wishes to succeed the deceased/defendant must bring the proper application before the court.

This case is distinguishable because it is well settled that in all representative actions, the represented unnamed members, are as much parties to the action as those representing them – See Ubagu & ors v. Okachi & ors (1964) 1 All NLR. 36. They are the unnamed parties. Hence on the failure of those representing them to do so, as in the instant case, any of those represented may be substituted or are entitled to apply as a person or persons having interest in the matter See s.213(5), 222(a) Constitution 1979 – See Otapo v Sunmonu (supra),

I now turn to consideration of the proposed grounds of appeal filed. The grounds of appeal which are reproduced below are as follows”

Proposed Grounds of Appeal

“1. The decision of the court of appeal given on 11th March, 1986, dismissing the appeal filed by Christopher Ede as appellant is null and void in that the decision was given against a dead party, namely the said Christopher Ede who died in May, 1983, when the law is that an order made by the court when one of the parties before it had, even unknown to the court, died was null and void:

Opebiyi v. Oshoboja (1976) 9 & 10 S.C. 195 at 200.

2. The decision of the court of appeal is bad in law in that it was given without notice to the appellant.

Particulars of error

(a) In 1983 the court of appeal issued hearing notice to Christopher Ede care of his counsel, A.N. Anyamene, Esquire, for 1st July, 1983. Mr. Anyamene returned the notice to the Registrar with the request that the notice be sent to Eha-Amufu Customary Court for service on his client as he had lost touch with Christopher Ede in view of the very long interval since the notice of appeal was filed in 1974.

(b) The said letter was indeed received in the court of appeal and a certified true copy thereof has been obtained and made an exhibit in the record of proceedings.

(c) But the respondents stated on oath that on 1st July, 1983 the court directed that hearing notices be served on the parties and their counsel.

(d) A search through the records of the court revealed that no hearing notice was ever sent to Eha-Amufu Customary Court, nor did the registry inform counsel that his said letter would not he acted upon.

3. The Court of Appeal misdirected itself in law and on the facts in dismissing the appeal on the ground that no brief was filed by the parties.

Particulars of misdirection

(a) The record of appeal was transmitted to the Court of Appeal in 1981 before the amendment to the court of Appeal Rules requiring the filing of briefs.

(b) The amendment to the Court of Appeal Rules requiring the filing of briefs came into force on the 1st of September, 1984 and expressly stated that it did not apply to appeals which had been listed for hearing on or before the 31st of December, 1984.

(c) The record of the court below shows that the appeal was listed for hearing on the 1st of July, 1983 but was not proceeded with on that date..

(d) Indeed the registrar of the court below stated that the court of appeal did not sit on that day.

(e) In the premises, it was not open to the court below to dismiss the appeal on 11th March, 1986, for non-filing of briefs.

(A.N. Anyamene, S.A.N)

Appellants’ Counsel”

The appeal was dismissed for failure by appellant to file brief of argument. The ground of appeal i.e. ground 3, which questions the application of that rule to the instant case on the ground that it is an appeal pending for hearing before 31st December, 1984 raises prima facie good cause why the appeal should be heard – See Ibodo & ors. v. Enarofia & ors (1980) 5-7 SC. 42, Mobil Oil Nigeria Ltd. v. Agadaigho (1988) 2 NWLR. (pt. 77) 383. It is not necessary for applicants to show that the appeal was bound to succeed. The application is for leave to argue the appeal – See Holman Bros (Nig.) Ltd. v. Kigo (Nig.) Ltd. (1980) 8-11 SC. 43.

The reasons are in addition to the contention that the appeal should have been struck out instead of being dismissed. There is no doubt that the ground of appeal, i.e. ground 1, alleging that the proceedings of the 11th March, 1986 was a nullity because Christopher Ede the named Plaintiff on record had died three years before the dismissal of the appeal and the conflict in the actual date of his death are grounds which if they succeed will undoubtedly result in the appeal succeeding. Similarly the validity of the service of the hearing notices relied upon for dismissing the appeal i.e. ground 2. Either of the above grounds of appeal i.e. grounds 1 and 2 question the validity of the judgment alleging the proceeding to be a nullity and show prima facie good cause why the appeal should be heard – See Nwadike v Nwadike (1987) 4 NWLR. (Pt.65) 394, In re Afolabi (1987) 4 NWLR (Pt.63) 18; Ojukwu v. Gov. of Lagos State (1985) 2 NWLR. (Pt. 10) 806.

I think applicants have given good and substantial reasons for their failure to apply for leave to appeal within the prescribed period. They have also shown their interest in the subject matter of the litigation. Their grounds of appeal prima facie show good cause why the appeal should be heard.

The above stated reasons are my considerations for granting the application on the 5th October, 1988.

SC.124/1988