Henry Okoli Vs The Surveyor General Anambra State Of Nigeria (2002)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C. 

By a motion dated 13th November, 1995 the party aggrieved for and on behalf of his Isu community, prayed for the following reliefs:

“1. ENLARGEMENT of time within which to seek leave to appeal from the decision of Ekwerekwu J. delivered herein on 18th September, 1989.

2. ENLARGEMENT of time within which to appeal from the said decision of Ekwerekwu J, delivered on 18th September, 1989.
3. LEAVE to appeal from the said decision of Ekwerekwu J. delivered on 18th September, 1989 as an interested party.
4. LEAVE to file the proposed notice and grounds of appeal attached hereto and marked annexure “A” out of time.

The motion was supported by a proposed notice of appeal containing 3 grounds. On 30th January 1996, Dr. Onyechi Ikpeazu, representing Henry Okoli of Nawfija community and 1st respondent swore to an affidavit and averred in paragraphs 1,2 and 3 as follows:

1. That I am a barrister and solicitor of the Supreme Court of Nigeria, engaged by Henry Okoli otherwise known as Henry Okoliegbo of Nawfija community in Orumba south local government area of Anambra State, in suit no. AA/MISC 18/95 Henry Okoli v. Surveyor General Anambra State.
2. That upon receipt of motion no. CA/E/224M/95 in these proceeding, I went to deliver same to the said Henry Okoli but was informed that he died on 10th September, 1995.
3. That I annex hereto and mark exhibit 1 Form D2, Federal Republic of Nigeria National Population Commission Certificate of Death, issued on 12th January, 1996 at Umunze, confirming registration of his death.”

From the contents of the affidavit supra and against which no counter affidavit was filed, it is clear that Henry Okoli, the 1st respondent died on 10th September, 1995, while the motion filed by Chief F.R.A. Williams SAN for and on behalf of the party aggrieved was dated 13/12/1995, that is about three months after the death of Mr. Henry Okoli. On 30/4/1996, learned senior counsel brought another motion in which he prayed as follows:

(i) Order amending applicant’s motion on notice dated 13th November, 1995 and the proposed notice of appeal attached thereto as annexure “A” by deleting Henry Okoli the 1st respondent as a party and substituting him with His Royal Highness Igwe J. E. Okoli Egbo.

The motion was supported by affidavit sworn to by T. E. Williams of Chief Williams chambers in which he averred in paragraphs 2, 3 and 6 as follows:-

“2. On 5th February, 1996, Dr. Onyechi Ikpeazu of counsel informed this Honourable Court that his client (Henry Okoli) i.e. the plaintiff/respondent herein died on 10th day of September, 1995 before the filing and service of applicants’ motion on notice dated 13th November, 1995.

3. The said Henry Okoli instituted the action herein in the court below (Awka Judicial Division) in a representative capacity and on behalf of the community of Nawfija, which community is one of the parties in the suits 0/19/48, 0/4/49, and 0/3/50 consolidated by order of court below (Onitsha Judicial Division) dated 20th day of February, 1951.
4. In the absence of any person appointed by the Nawfija community to represent them in this proceedings, applicants herein verily believe that His Royal Highness Igwe J.E. Okoli Egbo II who is the traditional ruler of Nawfija community is the fit and proper person to be made a party to this action in substitution of late Henry Okoli.”

On 6th May, 1996 the application praying for amendment of the motion was argued before the Court of Appeal, Enugu Division. Coram Okey Achike as he then was and Niki Tobi and Ubaezuonu, JJ.CA. In a considered ruling delivered by Niki Tobi, JCA (and with which Achike and Ubaezuonu, JJCA agreed), the learned justice, in granting the application concluded in his ruling dated 5/7/96 as follows:

“In the light of the foregoing, I grant the motion as prayed. I hereby order that the applicants’ motion on notice dated 13th November, 1995 and the proposed notice of appeal attached thereto as annexure “A” be amended by deleting Henry Okoli as a party and substituting him with His Royal Highness Igwe J. E. Okoli Egbo II.”

Aggrieved by the ruling of the Court of Appeal, the appellant has appealed to this court on the following grounds –

GROUND 1: ERROR IN LAW

The learned Justices of the Court of Appeal erred in law and thereby arrived at a wrong conclusion when they granted an amendment to the motion for extension of time within which to apply for leave to appeal as interested parties, leave to appeal as interested parties, leave to appeal e.t.c. dated 13th November, 1995 to introduce a new party, when the motion sought to be amended was filed at a time when the plaintiff/respondent being the sole surviving plaintiff was no longer living.

PARTICULARS OF ERROR