Government of Cross River State & Ors. V. Okpa Okpekor Assam (2007)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

This is an appeal against the judgment of Edem, J. of the High Court of Justice, Cross River State, Ikom Judicial Division in suit No. HM/10/2/97. The judgment was delivered on 18/11/98. There is an earlier ruling of the trial court delivered in 20/4/98. The original parties before the lower court are set out below:

Chief Felix Njang Assam – Plaintiff

And

1. The Government of Cross River State of Nigeria
2. Attorney-General and Commissioner for Justice, Cross River State
3. E. O. Erim – Defendants
4. His Royal Highness, Minen O. Ndoma-Egba

In a motion headed “motion ex parte” dated 18/9/2002 and filed in the lower court on 18/9/2002 there was an alteration in the number of parties on each side.

The parties appeared as follows:

1. The Govt. of Cross River State
2. Attorney-General and Commissioner for Justice, Cross River State
3. Mr. E. O. Erim – Appellants/Applicants
4. His Royal Highness, Minen Ndoma-Egba
5. Chief Ogar Ntui
6. Christopher Odu Amba

(For and on behalf of Agbokim Mbabor

And

1. Chief Felix Njang Assam
2. Mr. Omang Ntui – Respondents/Applicants
3. The Independent National Electoral Commission, Calabar
4. Okpa Okpekor Assam

In the shoddily compiled records of the lower court, there is no indication that the motion was argued and/or granted. However, on 18/2/03 Eneji, J. did granted an ex parte application and ordered thus:

“1. That Okpa Okpakor is hereby substituted as the respondent to prosecute the appeal already filed for and on behalf of late Chief Njang Assam family.

2. All subsequent court processes in connection with this case, is (sic) hereby ordered to be recorded to reflect Okpa Okpekor Assam as the respondent.
3. This miscellaneous application is accordingly determined and disposed.”

I shall re-visit this order later in the judgment. I have set out the three sets of parties in the same case to demonstrate the confusion arising from the records of the lower court. Apart from the order replacing the respondent with Okpa Okpekor as the respondent, there was no order altering the parties before the lower court, yet there where additions to the parties. It is to be noted that the motion purportedly granted by Eneji, J. was for joinder of a party, and not for the substitution granted. Also the purported representative capacity of the new respondent as well as the order for substitution were made ex-gratia by Eneji, J.

I find it surprising that none of learned counsel for the parties adverted his mind to the alteration of the parties without leave of court. The order for substitution granted in place of prayer for joinder and the capacity of the new respondent expressed by the court were made suo motu in the ruling delivered on 18/2/2003, by Eneji, J. Learned counsel for the parties did not consider it important that the trial court made an order for substitution for the purpose of prosecuting appeal on 18/2/2003 in respect of its judgment of 11/9/99. Above are serious issues of law which should have engaged the attention of learned counsel for the parties. Maybe learned counsel did not bother to read the entire records of proceedings of the lower court.

Having set out the above anomalies in the records, I shall now proceed with the appeal.

By what purports to be an originating summons the plaintiff in the lower court claimed the following reliefs against the defendants:-

“1. A declaration that the plaintiff is entitled to receive his monthly stipends as village head of Agbokim Mgbobor at Ikom Local Government.

2. A declaration that the information and directives contained in letters numbers SSG/GSAIS/175/S.18/Vol.111/954 and SSG/GSA/S/175/S.3/Vol.11/822 are illegal and of no effect.

3 A declaration that Agbokim Mgbabor village is in Ikom Local Government Area.

4. An order that the defendants continue to pay the monthly stipends of the plaintiff at Ikom Local Government.”

In addition, the plaintiff asked the court to determine the following questions:

“(i) Whether the plaintiff is entitled to receive his monthly stipend as village Head of Agbokim Mgbabor at Ikom Local Government.

(ii) Whether defendants are ought (sic) to have directed that the payment of his monthly stipends be transferred to Etung Local Government.

(iii) Whether Agbokim Mgbobor is in Ikom Local Government Area or Etung Local Government Area.”

My Lords, I am of the view that this matter should not have been commenced by originating summons. Not only does it involve questions of disputed facts, the proceedings are likely to provoke some hostility. See Doherty v. Doherty (1964) NMLR 144. The trial court should have treated the originating process as a writ of summons and ordered the parties to file pleading in the matter.

However, in a motion on notice dated 11/2/97, the defendants prayed the court for the following orders:

“1. An order of this Honourable Court dismissing or striking out this suit forthwith.

2. An (sic) for such further order or orders as this Honourable Court may deem fit to make in the circumstances.

Grounds of application

1. The plaintiff lacks the requisite locus standi to bring this suit.
2. This Honourable Court lacks the jurisdiction to entertain this suit.
3. That this suit is incompetent and an abuse of process of court.
4. The suit discloses no cause of action.”

There is a 28-paragraph affidavit in support of the application. There is no counter-affidavit.

On 20/4/98. the trial court ruled briefly as follows:

“And after hearing A. Agim, Esq. of counsel for the plaintiff/respondent and Barrister Joseph Efa, Esq. of counsel for the defendants/applicants for an application striking out or dismissing this suit. And the court orders as follows – That the application being devoid of merit is dismissed.”

In dismissing the motion, the learned trial Judge, with his penchant for flowery language, held, inter alia.

“In the final analysis, holding as I hold, I hold that the ship lead objection is devoid of merit and I sink it with the wave of a dismissed order.” See page 60 of the records.

Having taken the submissions of learned counsel for the parties in the main claim, the trial court delivered its judgment on 18/11/98, in which it posed the question:

“could this then place the plaintiff in the position of Archomedes of the physics of floatadom fame to shout EURIKA?”

The court answered the poser thus:

“It may jolly well be so. Yes so because in my ruling of the 20th of April, 1998 I have covered almost all the fields of facts and law available.

Nothing is now available for me to resolve. A portion of that ruling is very instructive in this regard.”

“…I hold that Agbokim Mgbabor is comfortably resting at where it has been resting and it still resting. Whether it is Ikom Local Government Area or Etung Local Government Area, the final judgment of the suit shall tell.”

And this is the final judgment from my said ruling and the foregoing declaration as I do hereby declared by virtue of relief No.2.

“1. That Agbokim Mgbabor village is in Ikom Local Government Area.

2. I order that the defendants continue to pay the monthly stipends of the plaintiff at Ikom Local Government in consequent.”

The original defendants filed an application on 26/5/98 for leave to appeal against the ruling of 20/4/98. There is no record that the motion was either taken or abandoned. However, the original 4 defendants and two additional defendants filed a notice of appeal dated 26/3/2002 on four grounds against the ruling of the lower court dated 20/4/98. Date of filing was not stated.

The original defendants filed a notice of appeal dated 19/11/98 on three grounds against the judgment of the lower court delivered on 18/11/98. The 5th and 6th appellants in the appeal against the ruling of 20/4/98 were not listed as parties in the main appeal. The parties filed and exchanged briefs of argument. 1st to 3rd appellants filed a consolidated brief of argument in which five issues were distilled from the two sets of grounds of appeal for determination. A brief filed for the 4th and 5th appellants (not consolidated as the 1st to 3rd appellants’ brief) framed three issues for determination.

The respondent, pursuant to Order 3 rule 15 of the Court of Appeal Rules, 2002 filed a notice of intention to rely on preliminary objection on 5/5/05. In his brief of argument, the respondent adopted the issues framed by the 4th and 5th appellants. The respondent argued the preliminary objection in his brief.

A preliminary objection to the hearing of an appeal is a preemptive strike, and its success vel non determines the fate of hearing of the appeal. I will dispose of the preliminary objection. Arguing his preliminary objection, learned counsel for the respondent contended that the appeal is improperly constituted and ipso facto the court lacks the requisite jurisdiction to hear it.

Learned counsel referred to the claim of the deceased plaintiff for continued payment of his monthly stipend as village head of Agbokim Mgbobor at Ikoh Local Government Area, adding that the declaration sought was ancillary to the main relief. He noted that the plaintiff did not sue in a representative capacity. Counsel argued that the action is based on the personal right of the plaintiff and invoked the principle – action (sic) pertonalis moritur cum persona. He noted that the respondent is the younger brother of the deceased plaintiff whom the 4th and 5th appellants brought in to replace the deceased plaintiff to enable them prosecute the appeal. Counsel urged the court to strike out the name of the respondent for there is nothing to suggest that the cause of action survived the deceased plaintiff. Counsel referred to pages 44-47 of the records for what he said appears to be the notice of appeal by the 4th and 5th appellants. He referred to the order of this court on 18/3/2002 and said that the 4th and 5th appellants were granted leave to appeal as interested parties, but they did not comply with the order but rather joined as 4th and 5th appellants in the appeal filed by the 1st – 4th defendants (now appellants). Learned counsel referred to Re: Ijelu (1992) 9 NWLR (Pt. 266) 414 and argued that the 4th and 5th appellants have not shown the legal grievance they suffered or how the decision has adversely affected them. Counsel argued that the notice of appeal being incompetent, there is no appeal before the court. He relied on Nwaeze v. Eze (1999) 3 NWLR (Pt. 594) 410, Global Transport Oceanico SA v. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt.706) 426, Ofitani v. Nigerian Navy (2001) 16 NWLR (Pt. 739) 365, FMBN v. NDIC (1999) 2 NWLR (Pt. 591) 333 and urged the court to strike out the appeal for incompetence and the resultant lack of jurisdiction by the court to entertain same.

The 1st to 3rd appellants did not react to the preliminary objection. Only the 4th and 5th appellants replied to the respondent’s preliminary objection.

Learned counsel for the 4th and 5th appellants referred to the order for substitution made by the High Court, Ikom on the application of the 4th and 5th appellants. He referred to page 47 of the records for the respondent’s application for substitution by a motion exparte filed on 18/9/2002. He argued that contrary to the argument of the respondent, the declaration that Agbokim Mgbobor is in Ikom Local Government Area affects the interest of all indigenes of Agbokim Mgbobor including the respondent. He argued that the order for substitution being an order of a court of competent jurisdiction subsists until it is set aside by either the lower court or an appellate court. He argued that not having filed cross-appeal, the respondent cannot be heard to canvass the striking out the name of the respondent. He referred to Baker Marina (Nig.) Ltd. v. D.C.M. Inc. (2001) 7 NWLR (Pt. 712) 337, (2001) FWLR (Pt. 47) p. 1143 at 1143 ratio 2.

On the notice of appeal not conforming with the order of this court, counsel submitted that the order dated 18/3/2002 granted the 4th and 5th appellants leave to represent Agbokim Mgbabor community as interested parties. Counsel said there was a typographical error in the names of the parties as Chief Ogar Ntui and Chief Christopher O. Amba representing Agbokim Mgbabor community and the appellants were erroneously typed together with the respondent. Counsel said it was to read

“In Re Chief Ogar Ntui and Chief Christopher O. Amba (for and on behalf of Aqbokim Mgbabor)”.

Counsel argued that having been granted leave to appeal as interested parties the 4th and 5th appellants have been; “clothed constitutional rights as the original parties in the case and therefore competent to lodge the appeal on the grounds filed.”

My Lords before I deal with the preliminary objection and the reply thereto I need to dispose of two issues – one by the respondent and one by the 4th and 5th appellant. The issues are not relevant in the determination of either the preliminary objection or the appeal itself.

Learned counsel for the respondent argued that the judgment against which the 4th and 5th appellants were granted leave to appeal as interested parties had nothing to do with their interest. He referred to in Re Ijelu (supra) on whom the right of appeal is conferred by the Constitution and submitted that the 4th and 5th appellants had not shown the legal grievance they suffered as a result of the judgment. This argument of learned counsel for the respondent is belated. The motion for leave to appeal as interested party was on notice to the respondent. The argument as to whether the 4th and 5th appellants had interest in the matter or were affected by the judgment should have been presented at the hearing of the motion by the court. There is no appeal against the order granting leave to the 4th and 5th appellants to appeal as interested party. I discountenance the argument of learned counsel for the respondent on the leave granted to the 4th and 5th appellants to appeal as interested party. The appellate court and the parties to the appeal are bound by the records of proceedings of the lower court. See Agagaraga v. F.R.N. (2007) 2 NWLR (Pt. 1019) 586 at 596 and S. 132 of the Evidence Act.

On the other hand, learned counsel for the 4th and 5th appellants purported to rectify a mistake in the way the parties were recorded. See Omorade v. Ibru (1976) UILR 94 at 132. Learned counsel has no power to effect any rectification of the records of appeal suo motu and exparte. The purported rectification will not avail the 4th and 5th appellants.

The main claim before the lower court is the “declaration that the plaintiff is entitled to his monthly stipends as village Head of Agbokim Mgbabor at Ikom Local Government.”

All the other reliefs are predicated on and are meant to boost, the main relief. Not only is the cause of action personal to the deceased, the action was not brought in a representative capacity. This is a personal action that cannot survive the plaintiff for the, payment of his stipend as the village Head of Agbokim Mgbabor will cease upon his death and the action or appeal will be terminated by his death See In Re: Otuedon (1995) 4 NWLR (Pt. 392) 655.

On 18/9/2002, the respondent applied to be joined as respondent in the appeal. However, on 18/2/2003, the lower court granted, an order for substitution rather than an order for joinder the respondent prayed for. Be that as it may, the application for joinder in a determined suit for the purpose of appeal cannot be granted there being no provision for joinder of interested party in an appeal in the Constitution – See Adeosun v. Akinyemi (2007) 4 NWLR (Pt.1023) 47 at 52. On the other hand, the order for substitution made by the lower court was invalid having been made without jurisdiction as the appellant in the motion did not seek substitution.

The lower court has no business making ex gratia award in the form of leave for substitution in place of leave for joinder claimed in the motion paper. See Oladunjoye v.Akinterinwa (2000) 6 NWLR (Pt.659) 92, (2000) 4 SC (Pt.1) 19. It follows that neither the joinder sought but not granted nor the substitution not sought but granted can avail the respondent.

The ruling and judgment giving rise to this appeal were delivered on 20/4/98 and 18/11/98 respectively. At the time the order for substitution was made on 18/2/2003 the trial court was functus officio. The order is invalid having been made without jurisdiction. In other words there is no respondent in the purported appeal.

There is also the issue of the leave granted by the court to the 4th and 5th appellants on 18/3/2002. The court granted the trinity reliefs sought by the 4th and 5th appellants, allowed them 21 days from 18/3/2002 to appeal against the judgment of the lower court dated 18/11/98. Rather than comply with the order of this court by B filing the notice and grounds of appeal, the 4th and 5th appellants purported to join in the appeal filed by the 1st – 3rd appellant. Having not complied with the order granted by this court at their instance the purported 4th and 5th appellants are not party to the appeal either as appellant or as respondent.

In the final analysis the suit No. HM/102/97 is a personal action which could not survive the plaintiff. The order for substitution was made ex gratia and made without jurisdiction as the lower court was functus officio at the time of the order. There is therefore no respondent in the purported appeal and the 4th and 5th appellants are not parties thereto having failed to appeal within 21 days from 18/3/2002 as ordered by this court or at all. The preliminary objection is well taken. The appeal is incompetent and ipso facto this court has no competence to entertain it. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 587. The consolidated appeals against the ruling of the trial court on 20/4/98 and its judgment delivered on 18/11/99 is hereby struck out for being incompetent.

There shall be no order as to costs.

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Other Citations: (2007)LCN/2407(CA)