James Ebele & Anor V. Robert Ikweki & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME (Ph. D). J.C.A. (Delivering the Leading Ruling)

The present application flows from the Judgment of the High Court of Warri Division presided over by Uwaifo J (as he then was) in which he gave Judgment on the 11th of May 1987 against the Applicants in a claim for declaration of title, damages for trespass and injunction brought against them by the Respondents. Dissatisfied with the Judgment of the trial court, the Applicants as Defendants in the lower court appealed to this court which court set aside the Judgment of the trial court and set the case back for retrial before another Judge.

The Respondents not pleased with the Judgment of this court, appealed to the Supreme Court which on the 18th day of February 2005 allowed the appeal, set aside the Judgment of the Court of Appeal and in its place struck out the appeal brought before this court by the Applicants as Appellants. The effect of the Judgment of the Supreme Court was that there was no appeal before this court.

From 18th February 2005 when the Supreme Court handed down its Judgment, the Applicants only filed an incompetent application dated 20/2/06, Applicants did nothing in respect of the Judgment of 1987. However, on the 10/11/2010 the Applicants brought the present application by which they seek leave of this court to substitute them for one Adima Opuro and Michael Aforigho said to be deceased; order of court substituting the Applicants for the said Adima Opuro and Michael Aforigho; leave of this court to join Prince Andrew T. Okotie as 3rd Appellant and Shell Petroleum Development Company as second set of Respondents; leave for extension of time within which to file Notice and Grounds of Appeal against the Judgment of Uwaifo J (as he then was) dated 11/5/87 in Suit No.W1176176; extension of time within which to file their Notice; and Grounds of Appeal against the said Judgment; leave within which to file their Notice and Grounds of Appeal; and an order deeming the Notice and Grounds of Appeal as Exhibit KSO “D” as properly filed and served.

The application is supported by a forty paragraph affidavit. The Respondent filed counter affidavit of sixteen paragraphs and a further counter affidavit of six paragraphs to which the Applicants replied in two portions, first portion being a reply by one Vinson Enweliku said to be a Litigation Secretary in the Applicant’s Solicitor’s Chambers and the second portion sworn to by one Robert Osifo also said to be a Litigation Secretary in the Applicant’s Solicitor’s Chambers.

In his oral argument in court in support of the application, learned counsel for the Applicants Okeaya Inneh SAN appeared to have concentrated his argument on the 3rd prayer in his motion paper seeking the joinder of Shell Petroleum as second set of Respondents. He argued that that prayer became necessary because the company is the body to pay compensation should the appeal succeed.

In his reply, learned counsel for the Respondent Okpoko SAN contended that the application is incompetent in that the persons reflected as the Appellants/Applicants were shown in the affidavit as dead people. On the joinder of Shell as a Respondent, he argued that since the Judgment neither mentioned compensation nor Shell, there was no need to join Shell. Counsel further argued that there was no appeal and the application to substitute the living for the dead should be at the High Court. In his own submission Mr. Etuwewe counsel for Shell argued that prayers 3 and 4 were incompetent because there was no pending appeal. He further argued that Shell having testified at the trial court cannot be joined at this stage.

Let me comment generally on the form and manner in which this application is presented. James Ebele and Akpunonu Aforiro were shown by paragraph 13 to be dead and yet they are shown on the motion paper and the supporting affidavit as the Appellants/Applicants.- The question becomes can dead men bring an application? Dead men it is said do not bite, and our courts have held that a dead person cannot bring an application, as in the instant case; dead men can neither sue nor be sued. see EZEAWOSU V. NGONADI (1988) 9 NWLR (PT.81) page 169 at 177. Secondly, there is nowhere in any of the paragraphs of the affidavit where it was averred that the two persons: Adima Opuro and Michael Aforigho sought to be substituted are members of Ebele Family of Orere-Uluba Village and that they have communality of interest with the original Plaintiffs who are said to be dead. Averments in affidavit are evidence called affidavit evidence. So there must be affidavit evidence to show the communality of interest between the parties sought to be substituted and those they seek to substitute. I am not unmindful of the heading of the motion paper were it was stated after the names of Adima Opuro and Michael Aforigho:

“Parties sought to be substituted as Appellants/Applicants being members of Ebele Family of Orere-Uluha Village Delta State”.

But the foregoing words are not evidence not forming part of the averments in the affidavit and therefore cannot provide the requirement of the law on evidence as to communality of interest and membership of that family. In the same vein, Prince Andrew T. Okotie was nowhere averred in the affidavit as a member of that family to raise communality of interest with the deceased Plaintiffs at the trial court so as to represent the aforesaid family in prosecuting any appeal. I have studiously read paragraph 13 which is the nearest the Applicants came to the status of Adima Opuro, Michael Aforigho and Andrew Okotie. For emphasis, I hereby reproduce the said paragraph. It read:

“That all the elders and people of the Applicants community could do was to forward a resolution dated 29th of April 2005 authorising the substitution of Pa Akponunu Aforigho and Mr. James Ebete (The 1st & 2nd Defendants now sought to be substituted) who died two years earlier while Prince Andrew T. Okotie should be joined as the third Appellant to prosecute this appeal on their behalf. The said resolution is annexed and marked Exhibit KSO “E”.

I have also read the resolution Exhibit KSO “E” aforementioned. I find nothing either in Paragraph 13 of the affidavit reproduced above, or in the resolution referred to in the said paragraph to show that Opuro, Aforigho and Okotie are members of the Ebele Family of Orere-Uluba Village and therefore chosen in that capacity to represent that family. This is not a matter for speculation, but one of concrete evidence to deposed to in an affidavit. These defects are fundamental in the competence of the application

On joinder of Shell and Prince T. Okotie, Shell was not made a Defendant at the trial court neither was Prince T. Okotie. The claims before the trial court and in respect of which Judgment was given as shown in Exhibit KSO “A” to paragraph 4 of the supporting affidavit where for:

1) Declaration that the Plaintiffs are the owners of the land in dispute call Ogbele land.