Legalpedia Citation: (2014) Legalpedia (CA) 61314
In the Court of Appeal
Fri Nov 7, 2014
Suit Number: CA/K/7/2013
CORAM
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE, COURT OF APPEAL
PARTIES
ESTATE OF HAJIYA RAMATU LAWAL APPELLANTS
HAJIYA FATIBA LONI RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Respondent instituted an originating summons against the Defendant/Appellant at the Kaduna State High Court seeking to recover vacant possession of the property lying, being and situate at No. BZ 102 Ogori Road, Sardauna Crescent, Kaduna state which the Defendant/Appellant was occupying as a tenant at will or a licensee. The trial Court transferred the matter to the general cause list and ordered parties to file pleadings on the basis of which the Plaintiff/Respondent filed its statement of claim and other necessary processes.The original Defendant/Appellant, Hajiya Ramatu LAWAL, died and was substituted with her estate on the ex-parte application of the Plaintiff/Respondent. The suit was fixed for mention on which date, the Defendant/Appellant was absent from the Court and the matter was adjourned for hearing. On the date of the hearing of the suit, the Defendant/Appellant wrote a letter to the trial Court seeking for an adjournment. The trial Court refused the application for adjournment and proceeded with hearing the evidence of PWI after which, it adjourned the matter for continuation of hearing. When the trial Court resumed hearing at the next adjourned date, the Defendant/Appellant filed a notice of preliminary objection challenging the jurisdiction of the trial Court to entertain the suit on the ground that the Estate of Hajiya Ramatu LAWAL which was not a juristic person was substituted by an ex parte motion other than a motion on notice. The trial Court ordered the continuation of hearing on the ground that the said notice of preliminary objection ought to have seen raised before the commencement of hearing of the suit. At this juncture, the Defendant/Appellant’s Counsel withdrew his appearance from the matter as a result of which the Plaintiff/Respondent withdrew the 2nd witness and closed her case. The trial Court finally entered judgment in favour of the Plaintiff/Respondent. Dissatisfied with the judgment of the trial Court, the Defendant/Appellant appealed to the Court of Appeal.
HELD
Appeal Allowed
ISSUES
Whether the deceased estate is a proper party to be substituted or joined as a defendant in the suit or not Whether the defendant was given fair hearing from the inception of the matter to the end or not”?
RATIONES DECIDENDI
PROCEDURE FOR SUBSTITUTION FOR JOINDER OF A NECESSARY PARTY – THE PROCEDURE FOR SUBSTITUTION FOR JOINDER OF A NECESSARY PARTY IS BY A MOTION EX-PARTE
“The procedure is by way of a motion ex-parte for the substitution for joinder of any such person considered as a necessary or desirable person to be made a party to the suit”. PER A. A. WAMBAI, J.C.A
GRANT OF ADJOURNMENT – ADJOURNMENTS ARE NOT GRANTED AS A MATTER OF COURSE BUT AT THE DISCRETION OF THE COURT WHICH DISCRETION SHOULD BE EXERCISED JUDICIALLY AND JUDICIOUSLY BASED ON THE FACTS OF EACH APPLICATION
“It is the law that adjournments are not granted as a matter of course or just for the asking. The grant of an adjournment is thus not automatic but at the discretion of the court which discretion the court exercises judicially and judiciously based upon the peculiar facts of each application. Every application must therefore be considered on its merits predicated upon the peculiar facts supporting same.” PER A. A. WAMBAI, J.C.A
DUTY OF COURT WITH RESPECT TO APPLICATIONS BEFORE IT – ALL APPLICATIONS BEFORE THE COURT HOWSOEVER UNMERITORIOUS IT APPEARS ON ITS FACE, MUST BE ENTERTAINED TO ENSURE THAT THE PRINCIPLES OF FAIR HEARING ARE COMPLIED WITH
“After all it is the law that all applications properly placed before the court howsoever unmeritorious or stupid it appears on its face, must be entertained by the court to ensure that the principles of fair hearing are complied with. See Naksa & Team Associates vs. N.N.P.C (1991) 8 NWLR (Pt 212) 652. The refusal to hear all applications placed before the court would amount to a breach of fair hearing. See Batisan & Anr. Vs. Chief Okunniga(2005)All FWLR(Pt.286)809,819.” PER A. A. WAMBAI, J.C.A
ABSENCE OF A PROPER PARTY – ORDER 13 RULE 16 OF THE RULES OF THE KADUNA STATE HIGH COURT CANNOT APPLY TO SAVE A SUIT WHERE THERE IS NO PROPER PARTY EITHER AS A PLAINTIFF OR A DEFENDANT BEFORE THE COURT
“It thus stands to reason that Rule 16 (1) would not apply to save a suit where there is no proper party either as a plaintiff or a defendant before the Court. A saving provision such as Order 13 Rule 16 of the Rules of the Lower Court, which is for misjoinder, non joinder or the joinder of a necessary party cannot in my view cure a situation of the absence of a proper party before the Court. In other words, Order 13 Rule 16 cannot be called in aid where the proper party has not been sued.” PER A. A. WAMBAI, J.C.A
REPRESENTATION OF A DECEASED ESTATE – A PERSON VESTED WITH JURISTIC PERSONALITY TO REPRESENT THE ESTATE OF THE DECEASED MUST BE SPECIFICALLY NAMED ON THE FACE OF THE WRIT OR ORIGINATING PROCESS
“It is trite law that the person vested with juristic personality to represent the estate of the deceased person must be specifically named and ascertainable on the face of the writ or the originating process and all other processes which must all be accordingly reflected. See the Administrators/Executors of the Estate of General Sani Abacha (Deceased) Vs. Samuel David Eke-Spiff and 3 Ors (Supra).” PER A. A. WAMBAI, J.C.A
LEGAL PERSONALITY – A DEAD PERSON DOES NOT HAVE LEGAL PERSONALITY – WHERE A CAUSE OF ACTION SURVIVES THE DEATH OF A PARTY, THE ACTION DOES NOT TERMINATE BY THE DEATH
“Generally, the law is that apart from the rights of administrators, executors or the personal representatives of the deceased person, a dead person ceases, immediately upon his death, to have any legal personality and as such can neither sue nor be sued. However, where the cause of action survives the death of a party, the action involved does not terminate by the death.” PER A. A. WAMBAI, J.C.A
ISSUE OF JURISDICTION – THE APPROPRIATE TIME TO RAISE THE ISSUE OF JURISDICTION IS AT THE EARLIEST OPPORTUNITY
“Although the issue of jurisdiction can be raised even on appeal for the 1st time as the learned trial judge held, it is settled law that the best time to raise the issue is in limine at the earliest opportunity. See Cotecna Intl. Ltd Vs Churchgate (Nig.) Ltd. (2011) ALL FWLR (Pt 575) 252 at 286 C-E, Good Will & Trust Inv. Ltd Vs Witt & Bush Ltd, Supra.” PER A. A. WAMBAI, J.C.A
JURISTIC PERSON – DISTINCTION BETWEEN NATURAL AND ARTIFICIAL PERSONS
“With respect to a natural person, there appears to be no difficulty in determining whether a person is a juristic person or not. This is because a natural person is every human being of either a male or female gender who is alive, is of full age, sane, and capable of suing or being sued in his name. Infants and lunatics are not juristic persons, but can sue or be sued by or through their next friend or guardian. Thus, save for infants and lunatics, every human being of the requisite capacity whether male or female is in law a juristic person who can sue and be sued as such a person. Thank God the dark and medieval era when a conference had to be held to consider whether a woman was a human being and if so had the legal personality as a human being has gone forever and for good. There is therefore no difficulty in determining a natural person. However, what often presents some problems is in the determination of when an artificial person is a juristic person in the eye of the law with the power to sue or be sued.
An artificial juristic person is an entity like corporations or other bodies created by statute or legislation and donated the power to sue and to be sued in the name as so created. It is thus clear that an artificial or juristic person is a creature of statute or constitution who must sue or be sued in that name as created.” PER A. A. WAMBAI, J.C.A
INTERFERENCE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT- INSTANCES WHERE AN APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT
“Being a matter entirely at the discretion of the court, once exercised properly, an appellate court is always reluctant and not in a hurry to interfere with the way a trial Judge exercises his discretion. An appellate court can only interfere where:
(a) The discretion was wrongly exercised,
(b) The exercise of discretion was tainted with some illegality or substantiate irregularity.
(c) There is miscarriage of justice, or
(d) It is in the interest of justice to interfere.”
See Ogunsanya vs. State (2011) All FWLR (Pt 590) 1203, Nzeribe vs. Dave Engr. Co. Ltd (1994) 8 NWLR (Pt. 361) 124.” PER A. A. WAMBAI, J.C.A
MISJOINDER OR NON JOINDER OF PARTIES – IMPORT OF ORDER 13 RULE 16(1), (2), (3), (4) AND 17(1), (2) OF THE RULES OF THE KADUNA STATE HIGH COURT ON MISJOINDER OR NONJOINDER OF PARTIES
“The provisions of Order 13 Rule 16(1), (2), (3), (4) and 17(1), (2) are hereunder reproduced:
” 1. No proceedings shall be defeated by reason of misjoinder or non joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before the Court.
2. A Judge may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Judge to be just, order that the name of any party improperly joined be struck out.
3. A Judge may order that the name of any person who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the question involved in the proceedings be added.
4. No person under legal disability shall be added as a Plaintiff suing without a guardian and no person shall be added as guardian of a Plaintiff under legal disability without the consent in writing of the person to be added.
17(1) Any application to add or strike out or substitute or vary the name of a Plaintiff or defendant may be made to a Judge by motion.
(3) Where the application is to add a Plaintiff or a defendant, the application shall be accompanied by the statement of claim or defence as the case may be, all the exhibits intended to be used and the depositions of all the witnesses.” PER A. A. WAMBAI, J.C.A
IMPORTANCE OF PROPER PARTIES IN AN ACTION – THE EXISTENCE OF PROPER PARTIES CLOTHS THE COURT WITH JURISDICTION
“The law is trite, that for a Court to be competent and have Jurisdiction over a matter, proper parties must be identified, and shown to be proper parties to whom rights and obligations arising from the course of action attach. The question of proper parties invariably, is such an important question as same affects the jurisdiction of the Court and goes to the root of the suit in limine. It is the existence of the proper parties that cloths the Court with jurisdiction. Thus, where one of the parties or both parties are not proper parties before the Court, the Court lacks jurisdiction to hear the suit. See Peenock Investment Ltd VS. Hotel Presidential Ltd (1982) 4NCLR122,EhidimhenVs Musa (2000) FWLR (Pt 21) 930, Goodwill & Trust Inv. Ltd Vs Witt And Bush Ltd (2011) All FWLR (Pt576) 517, Akindele Vs Adiodun (2010) All FWLR (pt 518) 894, 913”. PER A. A. WAMBAI, J.C.A
JURISTIC PERSON – ONLY JURISTIC PERSONS ARE COMPETENT PARTY TO A SUIT
“The law is settled that for any person to be a competent party to a suit, the person must be a juristic person. A juristic person is either a natural person being a human being with life and blood and the requisite capacity, or an artificial person being an entity created by statute and vested with the power to sue or to be sued.” PER A. A. WAMBAI, J.C.A
LEGAL PERSONAL REPRESENTATIVE – PREFERENCES AVAILABLE TO A JUDGE WHERE A DECEASED PERSON HAS NO LEGAL PERSONAL REPRESENTATIVE
“Rule 15 (1) provides for the options available to the Judge in a situation where it becomes apparent to the Judge that a deceased person who was interested in a proceedings has no legal personal representative. The Judge may:
(1) Proceed with the proceedings in the absence of any person representing the estate of the said deceased. Or
(2) Appoint some person to represent the Estate, for the purpose of the proceedings and in either case the order made by the Judge shall bind the Estate of the deceased person in the same manner as if a legal representative had been a party to the proceedings. (Underlining for emphasis).” PER A. A. WAMBAI, J.C.A
EFFECT OF A TRIAL WITHOUT JURISDICTION – WHERE THE COURT LACKS JURISDICTION, THE WHOLE TRIAL IS A NULLITY NO MATTER HOW WELL IT HAS BEEN CONDUCTED BY THE COURT
“No matter how well conducted and whatsoever industry a Judge puts into a matter where he has no jurisdiction, all the skill and industry only amounts to naught, an exercise in futility. There is thus, no justice in exercising jurisdiction where there is none. It is injustice to the court, and to the parties. See Oloba vs. Akereja (1988) 3 NWLR (Pt 84) 508.” PER A. A. WAMBAI, J.C.A
ISSUE OF JURISDICTION – RATIONALE FOR RAISING THE ISSUE OF JURISDICTION AT THE EARLIEST OPPORTUNITY AND AT ANY STAGE OF THE PROCEEDINGS BEFORE JUDGMENT
“By the very nature of a jurisdictional issue and the effect of its absence in that court, the law is that same should be raised at the earliest opportunity and at any stage of the proceedings before judgment. See Coteena Intl Ltd Vs.Churchgate (Nig) Ltd.(Supra). The rationale for this is that the issue of jurisdiction is very fundamental and goes to the root of the case and the competence of the court to entertain the action. Where the court has no jurisdiction, of what use is it to the court, and the parties for the court to embark on a fruitless exercise to expend its energy and valuable judicial time to a case, only at the end, for the same action to be declared a nullity.” PER A. A. WAMBAI, J.C.A
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999
2. Rules of the Kaduna State
3. High Court (Civil) Procedure Rules, 2007