Union Bank Of Nigeria Plc. V. Garilla Limited (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Ruling)

By a motion on notice dated 26th of June, 2010 and filed on the 28th June, 2010, the Applicant herein asked the court to set aside the Notice of Appeal filed on the 31/7/2006 by the Appellant who is Respondent in this application for being null and void ab initio. The ground upon which this application is predicated are as follows:-

a) The Notice of Appeal which was filed by the Appellant contains the name of a non-juristic personality, a liquidated limited liability company and therefore akin to a dead person, thus rendering the said notice and grounds of appeal void ab initio.

b) Any process filed against a non juristic personality is void ab initio and therefore a nullity.”

This application is supported by an eight paragraphs affidavit deposed to by Foster Okeri, a solicitor in the law firm of E. B. Ukiri & Co., counsel for the Applicant Annexed to the application are the notice of appeal, subject matter of this application and enrolment order of the Federal High Court, Abuja in which National Fertilizer Company of Nigeria Ltd. (NAFCON) was ordered to be wound up.

At the hearing of the application, Mr. E.B. Ukiri, counsel for the applicant in his submission relied on all the paragraphs of the supporting affidavit, particularly paragraphs 3-7 and contended that the notice of appeal filed by the Appellant on the 31/7/2006 is invalid, void and of no legal effect because one of the parties to the appeal is non-juristic and therefore not competent to invoke the jurisdiction of the court. In a further contention, learned counsel submitted that once there is a defect in the notice of appeal at all, the court’s jurisdiction stands challenged.

In aid learned counsel cited CHIEF PETER AJAHAIYE & ANOR v. CHIEF AGBEBAIKU EDEHAI & ANOR. (1994) 8 NWLR (PT. 346) 504 at 533 paragraph B – C. Finally learned counsel urged this court to grant the application.

Mr. C. N. Nworka, learned counsel for the Appellant/Respondent who filed no counter affidavit elected to reply on point of law. In his argument learned counsel submitted that where there are parties to an appeal and one of them is incompetent, that is not enough to vitiate the notice of appeal. According to the learned counsel, where a dead party is included among the living and competent parties, the notice of appeal remains valid. In support of this submission learned counsel cited the authorities in AYOMINDE V. ONI (2000) 2 SCNJ I at 12 – 13; ADELAKUN v. ARUKWU (2006) ALL FWLR (PT. 308) 1360 at 1374, CHIME V. CHIME (2001) 5 SCNJ 12 at 22-23.

In a further argument, learned counsel submitted that the applicant cannot complain against including NAFCON in the notice of appeal since NAFCON was included in the processes for enforcement of judgment at the lower court long after it ceased to exist.

According to the learned counsel, a party cannot complain against a procedure he induced.

Finally learned counsel urged this court to hold that the notice of appeal is competent and to dismiss the application herein.

Order 15 makes provision for the death of a party to an appeal rule 3 of the said order provide as follows:-

“Where an appeal has been set down for hearing and the court is or become aware that a necessary party to the appeal is dead the appeal shall be struck out.”

However rule 2 of this order provides for substitution of dead party to an appeal. The situation at hand does seem to fall within the ambit of order 15, in that all appeals are by way of rehearing of the case that begun at the lower court. Where the only appellant or the respondent is dead, surely the appeal cannot go on because if the dead person is the appellant, no one will prosecute and enforce the decision if the appeal succeeds or in case of the respondent who is dead, there will be no defendant that will be held accountable. To that extent, the notice of appeal is irregular since there is no appellant or respondent to sustain the appeal. In that scenario the appeal is liable to be struck out in absence of substitution.