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Clement Ezenwosu V Peter Ngonadi (1988) LLJR-SC

Clement Ezenwosu V Peter Ngonadi (1988)

LawGlobal-Hub Lead Judgment Report

B. CRAIG, J.S.C.

The Principal questions for decision on this appeal are:

(a) Whether a dead litigant could lodge an appeal against the decision of the High Court; and

(b) If not, what steps should be taken by any person interested in the appeal to revive it and continue with the appeal.

The claims in the Court of first instance were for declaration of title to a piece of land at Umuchu in the Aguata division of the former East Central State of Nigeria and an injunction to restrain the Defendant from entering or remaining on the said parcel of land.

Those claims came before Obi-Okoye J. (as he then was) and on the 4th of March, 1977, he gave judgment in favour of the Plaintiff. Apparently the Defendant was dissatisfied with that decision for, on the 7th April, 1977, his counsel filed in Court, a Notice of Appeal containing 11 grounds of appeal. But as it later turned out, the Defendant was dead as at that date.

He was alleged to have died on 4th April, 1977. Consequent upon the Notice filed, the parties were invited to settle records of appeal and on the 29th April, 1977, when they appeared before the Senior Registrar, the Defendant/ Appellant was recorded as having died. Nonetheless as both parties were represented by Counsel, the Registrar proceeded to impose conditions of appeal.

One of these conditions was that the Appellant should enter into a Bond in the sum of N200.00 with one surety in like sum to prosecute the appeal. In view of the fact that the Appellant had died one Peter Ngonadi was shown to have executed the said Bond. He did so on the 25th of May, 1977, and thereafter nothing further was done about the appeal for six years.

On the 13th June, 1983, the Plaintiff’s Counsel filed in the Court of Appeal Notice of a preliminary objection to strike out the appeal on the ground that it was incompetent as it was brought in the name of a deceased person. Counsel contended that the Appellant had died on the 4th April, 1977 – some three days before the appeal was filed – and two persons swore to this fact.

At the hearing of the application, Mr. Adogu, former Counsel for the deceased/appellant informed the Court orally that the appellant was alive when he filed the Notice of Appeal but that he had no further instructions on the matter. The court, thereafter, made an order striking out the appeal “for want of prosecution.”

After this event, indeed on 9th August, 1983, one Peter Ngonadi brought a Motion

“(i) To relist the appeal which was struck out for want of prosecution on 28th June, 1983; and

(ii) To substitute the name of Peter Ngonadi for Aaron Ngonadi who died on 12th April, 1977.”

In the accompanying affidavit, he swore to the fact that his father, Aaron died on 12th May, 1977. The two dates are obviously conflicting, but in a Counter-affidavit, the Plaintiff/Respondent maintained that the deceased Appellant died on 4th April, 1977. When the application came up for hearing the applicant’s Counsel withdrew the Motion and it was struck out.

On the 9th of March, 1984, the applicant (Peter Ngonadi) brought yet another Motion. This time, he prayed for:

“(i) extension of time within which to file notice and grounds of appeal in the above appeal;

(ii) For leave to appeal; and

(iii) For leave to substitute Peter Ngonadi, the Defendant/Appellant who died about 27th April, 1977.”

In paragraph 2 of the affidavit attached to the Motion, he deposed to the fact that his father died on 4th April, 1977. The Plaintiff/Respondent filed a Counter-affidavit in which he agreed that the deceased-appellant died on that date – 4th April, 1977, but he vehemently opposed the Motion. This is not surprising as the High Court judgment which the applicant was asking for leave to appeal against was already SEVEN YEARS old.

After hearing Counsel in argument, the Court of Appeal, per Belgore, J.C.A. (as he then was) reviewed the submissions of Counsel and held that the delay in making the application was not the fault of the applicant but that of the former Counsel of the deceased. The Court also held that if the deceased in fact died on 4th April, 1977, the appeal filed on his behalf on 7th April, 1977, was voidable and another party could be substituted for the deceased. In those circumstances, the lower Court granted the prayers asked for and made the following orders:

“I shall allow this application as prayed:

  1. for extension of time within which to appeal;
  2. for leave to appeal;
  3. to substitute the name Peter Ngonadi the applicant for Aaron Ngonadi, deceased who allegedly died on 27th April, 1977;
  4. Time is hereby extended till 30th May, 1985.”
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The Plaintiff/Respondent was dissatisfied with that Ruling and he appealed to this Court on 4 original grounds of appeal. With the leave of the Court he added a 5th ground. The five grounds of appeal are as follows:

Grounds for Appeal:

(1) That the Court of Appeal erred in law in granting the applicant/respondent’s application for him to be substituted for Aaron Ngonadi.

Particulars of Error:

(i) That the appeal No. FCA /E/161/80 was null and void ab-initio as it was filed in the name of a deceased person.

(ii) That the said Appeal No. FCA /E/161 was struck out on the 28th day of June, 1983, and there was therefore no appeal pending in respect of which any person could be substituted for any of the parties.

(2) That the Court of Appeal erred in law in granting the applicant/respondent extension of time within which to appeal against the judgment of the High Court, Awka, delivered in Suit No. AA/44/72 on the 4th day of March, 1977.

Particulars of Error

(i) That as the applicant/respondent contended in his application that Aaron Ngonadi died on 7th April, 1977, then the application for extension of time within which to appeal was misconceived.

(ii) That there was no material before the Court of Appeal on which it could grant the applicant/respondent extension of time within which to appeal.

(iii) That the applicant/respondent did not satisfy the statutory requirements on which extension of time within which to appeal could be granted.

(3) That the Court of Appeal erred in law in granting the applicant/respondent leave to appeal.

Particulars of Error

(i) That the applicant/respondent had tried to deceive the Court as to the date of the death of Aaron Ngonadi so as to make it appear that the purported appeal filed on 7th April, 1977 was valid.

(ii) That the applicant/respondent did not make any application for leave to appeal under section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979.

(4) That the Court of Appeal misdirected itself in law by holding that an appeal filed in the name of a deceased person was merely voidable.

Particulars of Misdirection

(i) That an appeal filed in the name of a deceased person is null and void ab initio

(5) That the Court of Appeal had no jurisdiction to grant to the applicant/respondent leave to appeal and extension of time within which to appeal as no application for extension of time within which to apply for leave to appeal was made and granted.

Particulars

(i) The time within which to appeal to the Court of Appeal against the judgment of the High Court, Awka, in Suit No. AA/44/72 expired on the 4th day of June, 1977.

(ii) The sole defendant having died, appeal against the said judgment could, after 1st October, 1979, be brought only with the leave of the High Court or of the Court of Appeal.

(iii) no application for extension of time within which to apply for leave to appeal was made or granted.

In the Brief of argument, the appellant’s Counsel has formulated three main questions for determination by this Court. I note that Mr. Akpamgbo, S.A.N., of Counsel for the appellant and which I consider appropriate and adequate for the determination of this appeal are as follows:

  1. (a) Was the appeal filed on 7th April, 1977, after the supposed Appellant had died on 4th April, 1977, void ab initio, voidable or valid

(b) If the purported appeal was void ab initio, could the applicant/respondent be substituted for the deceased person in whose name the appeal was erroneously filed

(c) And if the purported appeal had been struck out as having been brought in the name of a deceased person, could the applicant/respondent still be substituted for the deceased person

  1. (a) In the circumstances of this case under what statutory provision should the applicant/respondent have applied for leave to appeal

(b) Did the applicant/respondent make a proper application for leave to appeal

(c) As no application for extension of time within which to apply for leave to appeal was made or granted, had the Court of Appeal jurisdiction to grant the application for leave to appeal and for extension of time within which to appeal

  1. Did the applicant/respondent satisfy the statutory requirements for him to be granted extension of time within which to appeal

In respect of these various matters, I must commend both Counsel for the comprehensive submissions made to the Court. The briefs filed have also been of immense assistance.

It seems to me that the first question that should be dealt with is whether a deceased litigant can lodge an appeal to the Court of Appeal. The answer must obviously be in the negative.

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There is no doubt about it that when judgment was delivered in this matter on 4th March, 1977, the proceedings in the High Court must be taken to have come to an end. At that time both parties were alive. The next stage is for any aggrieved party in the case to appeal to the Court of Appeal.

Now proceedings in that Court are commenced by a Notice of Appeal in the same way as a normal suite is commenced by a Writ or Summons. It is to be expected therefore that the Notice of Appeal should be filed by an aggrieved party who is referred to as the “Appellant”. In section 32 of the Federal Court of Appeal Act No. 43 of 1976, an “Appellant” is defined as:

“any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal and includes a legal practitioner representing such a person in that behalf.”

See also Order 1 rule 2 of the Court of Appeal Rules. It seems to me that the word “any person” in the above definition must be taken to mean a living human being – i.e. a juristic person.

Now in the instant case, the question is would a notice which was filed by a dead person be valid Notice of Appeal I do not think so. It is reasonable to suppose that necessary instructions about the appeal were given to Counsel at sometime before the deceased died. But those instructions would cease on the death of the supposed appellant. The situation is similar to that which exists between a Banker and his customer.

The Banker’s authority to honour a customer’s cheque comes to an end on the death of his client. – see section 75 Bills of Exchange Act 1958.

The reason for that is not far-fetched; it is because dead men do not talk, they do not issue cheques not do they complain about judgments.

The position therefore is this that as the Notice of Appeal filed on 7th April, 1977, was lodged by a non-existing person it is null and void. It is incapable of placing the deceased’s complaints about the High Court judgment before, the Court of Appeal. It is as if no notice at all had been filed.

In any case, when that piece of paper was brought before the Court some six years later, it was, in my view rightly struck out, and the effect of that order was that there was no longer a pending appeal before the Court of Appeal. But this is not to say that the right to appeal has become extinguished. The Respondent’s Counsel has submitted that the cause of action survives the death of the deceased and I agree with him. The important thing, however, is that whoever wishes to succeed the deceased/defendant, must bring the proper application before the Court.

In this respect the deceased’s son (present applicant) took a false step when he applied to the lower Court to

(a) Relist the appeal which was struck out; and

(b) Be substituted for his father.

In my view that application was defective in two respects. Firstly, it is quite clear that the original Notice of Appeal was struck out because it was incompetent; an order restoring that same notice to the cause list would not cure the defect in it. Secondly, as I have stated before, an appeal to the Court of Appeal is commenced by a Notice of Appeal. If that document is filed by a dead person, the Court cannot be asked to amend the Notice by substituting a living person for the dead litigant, thus creating a proper “Appellant” in the case for the first time. See Tetlow VS. Orela Ltd. (1920) 2 Ch. 24 and In re: the matter of Pedro St. Matthew Daniel: (Deceased) (1950) 19 N.L.R. 73. It is obvious that the application was misconceived and in my view it was properly struck out. Perhaps the applicant must be made to appreciate that as far as this case is concerned he is a “Stranger” in the matter and if he wishes to be let in on the case (especially after a lapse of seven years) he should take the proper steps.

This brings me to the second main issue in this appeal and that is: What steps should a person take who wishes to be substituted for a deceased defendant

In the instant case, the deceased was dissatisfied with the judgment of the High Court and had before his death, expressed an intention to appeal, but unfortunately, he had not filed any proper papers in pursuance of that objective. Therefore an applicant wishing to be let in on the appeal would need to apply first to be made a party under section 222 of the Constitution of the Federal Republic of Nigeria 1979. The relevant portion of that section reads:

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“222. Any right of appeal to the 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 of Appeal at the instance of any other person having an interest in the matter…

(b) Shall be exercised in accordance with any Act of the National Assembly and Rules of Court for the time being in force regulating the powers practice and procedure of the Court of Appeal.” In the instant case, the applicant ought to have brought an application asking for:

(a) Leave to be made a party in the case;

(b) Leave to appeal against the decision of the High Court.

Now by section 25(2) (a) of the Court of Appeal Act No. 43 of 1976, an Appellant or any person desirous of appealing shall give notice of his appeal within 3 months of the date of a final decision, and by several decisions of this Court a person applying for leave to appeal must do so within the statutory period of 3 months. If he is out of time, he would need to apply for extension of time within which to apply for leave to appeal, otherwise, the leave sought will be refused. See: T. Bowaje v. M. Adediwura (1976) 6 S.c.143. N.O. Amudipe v. O. Arijodi (1978) 9/10 S.c. at 33. E.A. Lamai v. N.c.K. Onibih (1980) 5-7 S.c. 28 at 39. In the instant case, the Applicant/Respondent is hopelessly out of time in applying for leave to appea1. He is SEVEN YEARS late and what he ought to have done was first to apply for:

(i) Leave to appeal under section 222 of the 1979 Constitution as a person having an interest in the case; and under the Rules of Court;

(ii) Extension of time within which to apply for leave to appeal;

(iii) Leave to appeal; He may, of course, add other prayers, as for instance;

(iv) Extension of time within which to file Notice and grounds of appeal.

It is necessary to point out that the last three prayers are wholly dependent on the first prayer. The other prayers cannot succeed, unless the applicant is first made a party in the case. The Appellant/Respondent has in fact not asked for this first prayer and the lower Court was, in my view, wrong to have given the Respondent leave to appeal.

Before concluding this judgment, I must briefly comment on the wording of the 5th ground of appeal. The Appellant’s Counsel has submitted that the lower Court had no jurisdiction to grant the order prayed for because the respondent did not include a prayer for extension of time within which to apply for leave to appeal. The submission about lack of jurisdiction seems to me somewhat misconceived.

A defect in jurisdiction or lack of it relates to the act of embarking on the case, and not to any errors committed in the course of the hearing nor to the correctness of the judgment. See R. v. Governor-in-Council W.R. ex p. Laniyan Ojo (1962) All N.L.R. 147.

Indeed, jurisdiction is so fundamental to every adjudication that absence of it renders the entire proceedings nullity, no matter how well conducted and decided. See Madukolu and Ors. v. Nkemdilim (1962) All N.L.R. 587 per Bairamian FJ. In the instant appeal, there is no question about the lack of jurisdiction in the lower Court. By various Acts and Rules of Court, (notably section 222 of the 1979 Federal Constitution) the Court of Appeal is empowered to take applications for leave to appeal.

The fact therefore, that it eventually came to a wrong decision in the matter does not mean that it had no jurisdiction to hear the application.

In my view, a simple error in law has been made to appear as lack of jurisdiction.

For the various reasons already given, I hold that the lower Court had jurisdiction to hear the Respondent’s application but it erred in law in granting the Motion.

Accordingly, this appeal succeeds and it is allowed. The order of the lower Court is set aside, and it is ordered that the Respondent’s application shall be struck out.

There will be costs to the Appellant assessed at N500.00.


SC.15/1986

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