(2018) LPELR-44275(CA)

Transcription

1 ODIASE & ORS v. EDOGHOGHO CITATION: PHILOMENA MBUA EKPE In the Court of Appeal In the Benin Judicial Division Holden at Benin ON FRIDAY, 9TH MARCH, 2018 Suit No: CA/B/322/2016(R) SAMUEL CHUKWUDUMEBI OSEJI Before Their Lordships: MOORE ASEIMO ABRAHAM ADUMEIN 1. IDADA I. ODIASE 2. SAMUEL UGIAGBE (LATE) 3. ADELABU AGHARESE EDEBIRI 4. FRED IGIEBOR 5. AGBAKPAN DAVID OMOROGBE 6. DANIEL OSAGUE APOSTLE PATRICK EDOGHOGHO Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Applicant(s) RATIO DECIDENDI - Respondent(s)

2 1. APPEAL - NOTICE(S) OF APPEAL: Position of the law as regards the validity of a notice of appeal filed on behalf of a dead person "In the present application, although the first relief is for an order to substitute the deceased 2nd and 3rd appellants, the real aim of the application is to amend the original notice of appeal by the very substitution sought by the applicants. There is force in the argument of learned counsel for the respondent that the 2nd appellant/applicant had long died before this motion on notice was filed". As a matter of fact, the notice of appeal, by which the originated this appeal, covering pages 171 to 173 of the record of appeal, indicates clearly that the 2nd applicant - Samuel Ugiagbe, had died even before the said purported notice of appeal (which the applicants deliberately or otherwise refused to tender by their application) was filed on 10/12/2015. As can be seen from the said originating notice of appeal, the "appellants" did not file the notice of appeal in any representative capacities but in their respective personal capacities. The appeal itself, as it were, can be said to be in personam. The appeal, being an action or an appeal in personam, the deceased, the 2 appellant/applicant having died before the notice of appeal was purportedly filed, could not and did not have the legal capacity or personality to instruct A. Osayomwanbor, Esq.; learned counsel who signed the original notice of appeal, to file the said notice of appeal in the trial Court. Put differently, the dead 2 appellant/applicant had no legal personality to have jointly or severally initiated the appellants/applicants' appeal. In other words, the law is settled that a dead person ceases to have the legal personality to sue or be sued from the date of his death. See the case of Chief Peter Higo Ajakaiye & Anor. V. Chief Agbebaku Idehal & Anor. (1994) 8 NWLR (Pt. 364) 504 at 533, per Onu, JSC, where the Supreme Court stated, inter alia, as follows: "Generally, a dead person is no longer in the eyes of the law a person but in the eyes of the law, he is a person who ceased to have any legal personality from the date of his death and as such, can neither sue nor be sued personally or in representative capacity. The personality of a human being is extinguished by this death. The common law principle expressed in the maxim actio personalis moritur cum persona presupposes a cause of action arising when both the plaintiff and the defendant are alive and will regard the cause of action as ceased upon the death of either the plaintiff or the defendant." Since the appellants' appeal is in the realm of an action in personam, their notice of appeal, initiated by a notice of appeal containing at least one dead person - Samuel Ugiagbe, is fundamentally defective and cannot be saved by the amendment sought by the appellants/applicants. I think that it is a legal incongruity, if not an absolute absurdity, for a dead person to jointly file a notice of appeal with some living persons. The notice of appeal in this case, jointly filed by the dead 2 appellant with the other appellants, another of whom is now also dead, is an invalid originating process by reason of which it is fundamentally flawed and incompetent; and it cannot be cured or validated by an amendment. The law is quite settled that a fundamentally defective or an incompetent notice of appeal cannot be cured by an amendment. See Ralph Uwazurike & 6 Ors. v. Attorney-General of the Federation (2007) 8 NWLR (Pt.1035) 1; Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445; First Bank of Nigeria PLC & Anor. V. Alhaji Salmanu Maiwada (2013) 5 NWLR (Pt. 1348) 444 and Petgas Resources Limited v. Louis N. Mbanefo (2018) 1 NWLR (Pt. 1601) 442 at 470, per Kekere-Ekun, JSC."Per ADUMEIN, J.C.A. (Pp. 7-10, Paras. A-B) - read in context

3 PHILOMENA MBUA EKPE, J.C.A. (Delivering the Lead Ruling): By a motion on notice filed on the 31st day of January, 2018, the Appellants/Applicants herein prayed this Court for the following orders: (1) An order to substitute MESSR UGIAGBE JONATHAN and OSAROSE ADELABU EDEBIRI the eldest surviving sons of the 2nd and 3rd Appellants for Samuel Ugiagbe and Adelebu Agharese Edebiri (Deceased). (2) AN ORDER granting leave to the Appellants/Applicants to amend the Appellants Notice and Grounds of Appeal to reflect the substitution. (3) AND for such FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances. The grounds for which the prayers are sought are as follows: (i) That the 2nd and 3rd Appellants in this case died in the course of prosecuting the Appeal to the knowledge of the surviving parties. (ii) That the above information came to my knowledge recently. (iii) That under the Bini Native Law and Custom, it is after the full burial had been completed that the estate of deceased Bini man could be shared amongst his children. (iv) That the burial rights of the

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5 deceased 2nd and 3rd Appellants have been completed and the above names submitted to counsel for substitution. (v) That MESSR UGIAGBE and OSAROSE ADELABU EDEBIRI the eldest surviving sons of the 2nd and 3rd Appellants inherited the IGIOGBE and this Appeal (CA/B/322/2016). (vi) That the cause of action in this appeal survived the 2nd and 3rd Appellants (deceased). The said motion on notice is supported by a five paragraph affidavit. The affidavit is hereby reproduced as follows: 1. That I am a litigation clerk in the law firm of Osayomwanbor Law Chambers, a firm of Solicitors retained by the Appellants/Applicants. 2. That I have the consent and authority of the Appellants/Applicants to depose to this affidavit. 3. That by virtue of my position in law firm I am conversant with the facts and circumstances of this appeal. 4. That during the pendency of this appeal the 2nd and 3rd Appellants, Samuel Ugiagbe and Adelabu Agharese Edebiri died and were buried under Benin Customary Law. 5. That I was informed by the 4th Appellant/Applicant and I verily believed him that: a. That Messrs ugiagbe Jonathan and Osarose Adelabu

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7 Edebiri the parties sought to be substituted are the surviving eldest sons of the Messrs Samuel Ugiagbe and Adelabu Agharese Edebiri 2nd and 3rd Appelant (deceased). b. That the burial rights of the 2nd and 3rd Appellants in accordance with Bini Native Law and Custom have long been completed. c. That the said Messrs Ugiagbe Jonathan and Osarose Adelabu Edebiri were nominated by their respective families to be substituted as 2nd and 3rd Appellants being the eldest son of their Late father respectively. d. That this application will not prejudice the case of the Respondent. e. That I conscientiously deposed to this Affidavit in good faith believing the same to be true and in accordance with the provisions of the Oaths Act. The Respondent in opposing the said application for substitution filed a counter affidavit of eleven paragraphs sworn to by one Mr. Apostle Patrick Edoghogho on the 28th day of September, The counter affidavit is hereby reproduced thus: 1. That I am the Respondent/Applicant in this application. 2. That I was informed by Mrs. E.E.O. Uloho, one of my lawyers in the law firm of Olayiwola Afolabi & 3

8 Co., at No. 2, Urubi Street, Benin City on the 26th day of September, 2017 at about 2.p.m. at No. 2, Urubi Street, Benin City which I verily believe to be true and I state as follows: 3. That the Appellants/Respondent motion dated 2nd May, 2017 was granted on the 4th day of May, That the Appellants were given forty five (45) days within which to file their Appellants Brief of Argument. 5. That the Appellants have failed and refused to obey the order of this Honourable Court. 6. That the forty five days given to the Appellants to file their Appellants Brief of Argument since the 4th day of May, has since expired. 7. That the Appellants/Respondents delay in filing their Appellants Brief of Argument is to further deprive the Respondent/Applicant from enjoying the fruit of his judgment. 8. That this appeal is against the judgment of a case which was instituted in 1982 over 34 years ago. 9. That it is in the interest of justice that my application be given a favourable consideration. 10. That the respondent will not be prejudiced in any way if this application is granted. 11. That I make this oath in good faith, 4

9 conscientiously believing its content to be true and correct and in accordance with the oath law currently applicable to Edo State. Counsel for the Respondent opposed the application and relied on the counter affidavit especially paragraphs 3 8. He argued that the application is a ploy to delay the matter and that the said motion is also defective because paragraph five offends Section 115 of the Evidence Act. Counsel further submitted that, the 4th appellant who volunteered information is neither related to the deceased nor to the deponent of the affidavit and that the 2nd Appellant had died long before the institution of this appeal. He further argued that there is no medical certificate to prove their death. Learned counsel for the Respondent further contended that paragraph 4 of the said motion is incorrect. He therefore urged the Court to dismiss it. I have carefully read the motion on notice as well as the affidavit in support thereof. I have also read the Respondent s counter affidavit with the oral submissions of the Respondent. From our records, it is a fact that both the 1st and the 2nd Appellants/Applicants are 5

10 deceased. The 2nd Appellant/Applicant Samuel Ugiagbe died before the notice of appeal was filed on the 10th day of December, That fact was known to the learned Appellants counsel but he proceeded to file the notice of appeal despite the fundamental defect. There is no gainsaying the fact that an appeal cannot be filed on behalf of a deceased Appellant/Applicant. In consequence and also in view of the said fundamental defect, this application for substitution is grossly incompetent and it is hereby dismissed. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now, the lead ruling just delivered by my learned brother P.M EKPE JCA. I agree with the reasoning and conclusion to the effect that the application is incompetent and it is hereby dismissed. I also dismiss the said application. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the ruling just rendered by my learned brother, Philomena Mbua Ekpe, JCA. I agree that, having regard to the peculiar facts and circumstances of the applicants application filed on 31/01/2018, the objection thereto by the respondent is meritorious. 6

11 In the present application, although the first relief is for an order to substitute the deceased 2nd and 3rd appellants, the real aim of the application is to amend the original notice of appeal by the very substitution sought by the applicants. There is force in the argument of learned counsel for the respondent that the 2nd appellant/applicant had long died before this motion on notice was filed. As a matter of fact, the notice of appeal, by which the originated this appeal, covering pages 171 to 173 of the record of appeal, indicates clearly that the 2nd applicant - Samuel Ugiagbe, had died even before the said purported notice of appeal (which the applicants deliberately or otherwise refused to tender by their application) was filed on 10/12/2015. As can be seen from the said originating notice of appeal, the appellants did not file the notice of appeal in any representative capacities but in their respective personal capacities. The appeal itself, as it were, can be said to be in personam. The appeal, being an action or an appeal in personam, the deceased, the 2 7

12 appellant/applicant having died before the notice of appeal was purportedly filed, could not and did not have the legal capacity or personality to instruct A. Osayomwanbor, Esq.; learned counsel who signed the original notice of appeal, to file the said notice of appeal in the trial Court. Put differently, the dead 2 appellant/applicant had no legal personality to have jointly or severally initiated the appellants/applicants appeal. In other words, the law is settled that a dead person ceases to have the legal personality to sue or be sued from the date of his death. See the case of Chief Peter Higo Ajakaiye & Anor. V. Chief Agbebaku Idehal & Anor. (1994) 8 NWLR (Pt. 364) 504 at 533, per Onu, JSC, where the Supreme Court stated, inter alia, as follows: Generally, a dead person is no longer in the eyes of the law a person but in the eyes of the law, he is a person who ceased to have any legal personality from the date of his death and as such, can neither sue nor be sued personally or in representative capacity. The personality of a human being is extinguished by this death. The common law principle expressed in the 8

13 maxim actio personalis moritur cum persona presupposes a cause of action arising when both the plaintiff and the defendant are alive and will regard the cause of action as ceased upon the death of either the plaintiff or the defendant. Since the appellants appeal is in the realm of an action in personam, their notice of appeal, initiated by a notice of appeal containing at least one dead person - Samuel Ugiagbe, is fundamentally defective and cannot be saved by the amendment sought by the appellants/applicants. I think that it is a legal incongruity, if not an absolute absurdity, for a dead person to jointly file a notice of appeal with some living persons. The notice of appeal in this case, jointly filed by the dead 2 appellant with the other appellants, another of whom is now also dead, is an invalid originating process by reason of which it is fundamentally flawed and incompetent; and it cannot be cured or validated by an amendment. The law is quite settled that a fundamentally defective or an incompetent notice of appeal cannot be cured by an amendment. See Ralph Uwazurike & 6 Ors. v. Attorney- General of the 9

14 Federation (2007) 8 NWLR (Pt.1035) 1; Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445; First Bank of Nigeria PLC & Anor. V. Alhaji Salmanu Maiwada (2013) 5 NWLR (Pt. 1348) 444 and Petgas Resources Limited v. Louis N. Mbanefo (2018) 1 NWLR (Pt. 1601) 442 at 470, per Kekere-Ekun, JSC. It is for the foregoing reasons and the fuller reasons given by my learned brother that I refuse this motion on notice filed on 31/01/2018, which I also dismiss. Consequently, this appeal - CA/B/322/2016 initiate by an incompetent notice of appeal, is hereby struck out. 10

15 Appearances: Mrs. G. Ugbodaga-Okolie For Appellant(s) Mrs. E.E.O. Uloho For Respondent(s)