Mrs. Irene Fubara Manuel V. Chief O. O. Oruwari & Anor (2004)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment):

The suit the subject of this appeal was commenced at the High Court of Rivers State with the following parties –

BETWEEN:
CHIEF OWITUBO O. ORUWARI-   PLAINTIFF
(By his Attorney Chief Kenneth I. Briggs)
v.
1. ATTORNEY-GENERAL, RIVERS STATE
2. RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY –  DEFENDANTS
3. MRS. IRENE FUBARA MANUEL

On 14th July, 1988 the plaintiff filed motion on notice praying for leave to discontinue the suit against the Attorney-General of Rivers State. The court below accordingly struck out the Attorney-General of Rivers State from the suit.

On 10th September, 1990 an application was brought by Senibo Oruwari praying that “the name of Chief Owitubo O. Oruwari in the suit no. PHC/526/86 be substituted with that of his son, Senibo Oruwari and that the suit be prosecuted in the name of Senibo Oruwari as the plaintiff”. The application was granted unopposed on 28th January, 1991 and it was “ordered that in the suit no. PHC/526/86 the name of Chief O. O. Oruwari, now deceased be dropped and substituted with the name of his son, Senibo Oruwari, as the plaintiff”.

From thence Senibo Oruwari prosecuted the case as the plaintiff against only the Rivers State Housing and Property Development Authority, and Mrs. Irene Fubara Manuel, the Attorney-General of Rivers State having already been struck off as a defendant in the suit. Judgment in the suit was delivered on 30th July, 1997 between the Senibo Oruwari, as plaintiff, and Rivers State Housing and Property Development Authority, and Mrs. Irene Fubara Manuel, as defendants. The substitution of Senibo Oruwari, as the plaintiff, for Chief O. O. Oruwari (by his attorney K. I. Briggs) was on the footing that Chief O. O. Oruwari, erstwhile plaintiff, had since died on 14th May, 1990 – see pages 183 – 187 of the Record of Appeal.

As between the parties this fact is notorious. The testimony of PW.1 at page 206 of the Record bears this fact out.

The 1st Respondent has brought a notice of preliminary objection on 19th September, 2007, which he argued in his brief filed on 12th June, 2010 vide order made on 24th May, 2010. The preliminary objection is on three grounds, namely:

a. That the notice of appeal filed at pages 403 – 405 of the Records, is fundamentally defective and void ab initio having been filed against Chief O. O. Oruwari (by his attorney K. I. Briggs) – both deceased.

b. That the purported interlocutory appeal, argued together with this appeal, is incompetent, its notice of appeal having not been filed in the Registry of the lower court or at all.

c. That the argument of both appeals together by the Appellant renders the brief of argument filed by the Appellant also incompetent and void.

The preliminary objection of the 1st Respondent was argued in paragraphs 3.02 – 3.06 of the 1st Respondent’s Brief. The arguments of the 1st Respondent on the preliminary objection and the appeal, contained in the 1st Respondent’s Brief filed on 12th June 2012 vide order made on 24th May, 2012 were adopted by E. B. Ukiri of counsel to the 1st Respondent on 25th February, 2014 when this appeal was heard. The Appellant’s Brief filed on 8th March, 2005 was deemed argued in the absence of the Appellant and his counsel. The hearing notice for the appeal was on 10th January, 2014 served on the Appellant through her counsel.

Mrs. Irene Fubara Manuel, as the 2nd defendant in the suit of Senibo Oruwari, who was substituted for the deceased Chief O. O. Oruwari, was aggrieved by the decision of Rivers State High Court (coram: F. N. N. Ichoku, CJ) delivered on 30th July, 1997 in the suit no PHC/526/86. The said Mrs. Irene Fubara Manuel, as the appellant, brought this appeal vide the notice of appeal filed on 22nd August, 1997. The notice of appeal at pages 403 – 405 of the Record, settled by O. Ben-Whyte of counsel for the appellant has Mrs. Irene Fubara Manuel as the appellant, and two respondents named as Chief O. O. Oruwari (by his attorney, K. I. Briggs) and the Rivers State Housing and Property Development Authority.

The parties directly affected by this appeal are, at page 405 of the record, stated to be
1. CHIEF O. O. ORUWARI (By his Attorney, K. I. Briggs)
2. RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY
3. MRS. IRENE FUBAM MANUEL

There is an undisputed proof, at page 187 of the Records that Chief O. O. Oruwari died on 14th May, 1990. The order of court made on 28th January, 1991 that “in the suit no. PHC526/86 the name of Chief O. O. Oruwari, now deceased, be dropped and substituted with the name of his son, Senibo Oruwari, as the plaintiff” bears eloquent testimony that not only that Chief O. O. Oruwari had died since 1990 but also that he had ceased to be a plaintiff on the record in the said suit from 28th January, 1991. Mr. Ukiri submits and I agree that a deceased person ceases to have legal or juristic personality.

Accordingly an originating process, as the notice of appeal, issued either in the name of or against a deceased party or non-juristic personality is void ab initio. A deceased person, as Chief O. O. Oruwari, having no legal personality from the moment of his death can neither be an appellant nor a respondent in an appeal. The notice of appeal at pages 403 – 405 of the records of appeal is null and void and of no effect, the appeal thereby having been brought against a deceased party as one of the respondents. See CHIEF PETER AJAKAYE & ANOR v. CHIEF A. EDEHAI & ANOR (1994) 8 NWLR (Pt. 346) 504 at 533.

See also in RE: OSIBAKORO D. OTUEDON (1995) 4 NWLR (Pt. 392) 655 where the Supreme Court further affirmed this principle of law. In the said matter, the apex court cited with approval CLEMENT EZENWOSU v. PETER NGONADI (1988) 3 NWLR (Pt. 81) 163 and LAZARD BROTHERS v. MIDLAND BANK (1932) 1 KB 617 at 624 (CA) and held that where a notice of appeal is incompetent, null and void there can be no valid appeal pending before the appellate court. Such notice of appeal can not even be amended by substituting a living person for the dead litigant. See CLEMENT EZENWOSU v. PETER NGONADI (supra). The defect is not a mere procedural defect or irregularity but a radical and fundamental error bordering on issue of jurisdiction. See IN RE: OTUEDON (supra).

I am satisfied that the purported notice of appeal at pages 403-405 of the Records is incompetent, null and void, and of no effect. The notice of appeal can not kick-start the jurisdiction of this Court. That is the effect of the incompetence of the notice of appeal. The jurisdiction of this Court can only be properly invoked by a notice of appeal initiated by due process of law. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587 at 594; SKENCONSULT (NIG) LTD v. UKEY (1981) 1 SC (Reprint) 4.

As we lack jurisdiction, my Lords, to entertain this appeal, including the additional grounds of appeal, the appropriate order to make is an order striking it out, and it is hereby struck out. See ONWE & ORS v. OKE & ORS (2001) 3 NWLR (Pt. 701) 406 at 417; MOBIL PRODUCING (NIG) UNLTD v. LASEPA & ORS (2001) 8 NWLR (Pt. 715) 489 at 504.

The records before me show that the appellant filed a motion on notice on 9th February, 2004 wherein he sought inter alia order extending time within which to apply for leave to appeal against the interlocutory ruling delivered on 28th January, 1991, leave to appeal the said ruling and extension of time to file the notice and grounds of appeal. The application was granted on 1st March, 2005. The application was brought against the deceased Chief O. O. Oruwari as one of the respondents. The application has the same fundamental errors that vitiated the notice of appeal at pages 403 – 405 of the Records of Appeal. Accordingly, the notice of interlocutory appeal brought in that fundamental error is also incompetent.

The law is settled that where an order is made granting the appellant extension of time within which to appeal and leave to appeal when in fact there was either no living appellant or respondent, or when one of the litigants was dead before the order was made, such an order would be null and void, and of no effect whatsoever. See IN RE: OTUEDON (supra) in which the Supreme Court cited with approval this principle of law espoused in LAZARD BROTHERS v. MIDLAND BANK (1932) (supra) and CLEMENT EZENWOSU v. PETER NGONADI (supra). The interlocutory appeal against the ruling of 28th January, 1991 being also incompetent is hereby struck out.

The Appellant’s Brief filed on 8th March, 2005 is apparently founded on the incompetent original and interlocutory appeals. The brief is also liable to be struck out as something can not be placed on nothing. It will collapse, as stated by Lord Denning MR in U.A.C. LTD v. MACFOY (1961) 3 ALL E.R 1160. The Appellant’s Brief of Argument can not be valid when the appeal it purports to argue is incompetent. Accordingly, the Appellant’s Brief of Argumen B t filed on 8th March, 2005 is hereby struck out.

There is substance in the preliminary objection. I accordingly allow it. The original notice of appeal filed on 22nd August, 1997 at pages 403-405 of the Records, the interlocutory appeal, the additional grounds of appeal and the Appellant’s Brief of Argument filed on 8th March, 2005 being all incompetent processes are all hereby struck out.

I notice also that in the Appellant’s Brief filed on 8th March, 2005 she had also unilaterally altered the parties to her appeal. Ex facie the brief Senibo Oruwari (by his attorney, Chief Ken I. Briggs) is the 1st Respondent in the appeal. The 1st Respondent in both substantive and interlocutory appeals was Chief O. O. Oruwari (by his Attorney, K. I. Briggs).

No party is allowed to unilaterally alter or amend the notice of appeal. By dint of Order 6 rule 15 of the Court of Appeal Rules a notice of appeal can only be amended by or with leave of court. By this unilateral alteration the Appellant’s Brief filed on 8th March, 2005 is not a brief of argument filed in any existing appeal. The consequence of this is that the appellant will be deemed not to have filed any brief of argument in this appeal. That being so, the appeal would be liable to be dismissed for want of prosecution.

The substantive appeal and the interlocutory appeal being incompetent are hereby struck out. There is, therefore, no basis for me to disturb the decision and orders made in the suit no PHC/526/86 on 30th July, 1997. The parties shall bear their respective costs.

Other Citations: (2004)LCN/1546(CA)