SUBSEA SERVICES INTERNATIONAL INC. VS ACCESS BANK
March 27, 2025CHIEF OBONG GORDON ETUKEREN v CHIEF OKON SUNDAY PETER UKO & ORS
March 27, 2025Legalpedia Citation: (2022-04) Legalpedia 74712 (CA)
In the Court of Appeal
Holden at Lagos
Tue Mar 22, 2022
Suit Number: CA/LAG/CV/1204/2019
CORAM
OBANDE FESTUS OGBUINYA, JUSTICE COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO, JUSTICE COURT OF APPEAL
PETER O. AFFEN, JUSTICE COURT OF APPEAL
PARTIES
HAND OF GOD ESTATE LIMITED & ORS
APPELLANTS
MR. BASHAR DANKARO & ORS
RESPONDENTS
AREA(S) OF LAW
ACTION, APPEAL, CONSTITUTIONAL LAW, COURT, DAMAGES, FAIR HEARING, INTERPRETATION OF STATUTE, JUDGMENT AND ORDER, LEGAL PERSONALITY, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Respondents instituted this action before the High Court of Lagos State, Lagos Division in respect of a parcel of land, lying at Block 76, Plot 39, Lekki Phase 1, Lekki, Lagos. wherein vide their Amended Writ of Summons, they sought against the Appellants and one Mr. Oluwole Fowora (1st Defendant at the trial Court), declaratives and injunctive reliefs, Damages and cost of litigation. In reaction, the Appellants filed a joint Statement of Defence and also Counter-claimed against the Respondents. At the end of the trial, the Court non-suited the Respondents and granted partially prayer (1) of the counter-claim and dismissed the other reliefs therein. Dissatisfied with the judgment of the trial Court, the Appellant appealed against same vide his Notice of Appeal containing 4 Grounds of Appeal. The Respondents alongside their brief of argument filed a Preliminary Objection challenging the competence of the appeal.
HELD
Appeal Allowed
ISSUES
Whether upon the findings of the lower court that the Claimants/Respondents had failed to satisfy the burden of proof in the suit, the lower court ought to have dismissed the Claimants’/Respondents’ claims as against making an order to non-suit against the claim.
Whether the Appellants had established cogent proof before the Lower Court to entitle them to the grant of all the reliefs in their counterclaim.
RATIONES DECIDENDI
THE NATURE AND PURPORT OF A PRELIMINARY OBJECTION
“A preliminary objection is a specie of objection which, if sustained by a court, will render further proceedings in a matter unnecessary, see Abe v. UniIlorin(2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v4’madi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. md. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan(2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eedv. Yakowa(2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara(2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu(2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere(2017) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi(2017) 14 NWLR (Pt. 1584) 142. -PER O. F. OGBUINYA, J.C.A
STATUS OF THE LEGAL CAPACITY OF A DECEASED PERSON TO SUE OR BE SUED
“The settled position of the law, in the days of the yore, is that a dead person loses his legal personality and as such cannot sue or be sued in any action. By the same token, such a deceased person cannot initiate or defend an appeal. In the Latin days of the law, the hallowed principle of law was encapsulated in the maxim: Actio persona lismoritor cum persona: a personal action dies with the person, see Management Enterprises Ltd. v. Otusanya (1987) 1 NSCC (vol. 18) 577/(1987) 2 NWLR (Pt. 55) 179/(1987) 4 SC 368; Oyeyemi v. Commissioner for L.G. Kwara State (1992) 2 NWLR (Pt. 226) 661; In Re: Adeosun (2001) 8 NWLR (Pt. 714) 200; Ezenwosu v. Ngonadi(1988) 3 NWLR (Pt. 81) 163; In Re: Otuedon (1995) 4 NWLR (Pt. 392) 655; C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65; Mulima v. Usman(2014) 16 NWLR (Pt. 1432) 160; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531.Bajehsonv.Otiko(2018) 14 NWLR (Pt. 1638) 138; Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 98. -PER O. F. OGBUINYA, J.C.A
CASES CITED
None
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 as amended
High Court of Lagos State (Civil Procedure) Rules, 2019 and 2012
