Court Of Appeal – Lagos Division – March, 2016

APPEAL NO: CA/L/320/2014

 

Areas Of Law:

ACTION, APPEAL, COURT, FAIR HEARING, JURISDICTION, LEGAL PERSONALITY, PRACTICE AND PROCEDURE

Summary Of Facts

The Respondents filed an application at the Federal High Court for amendment of their writ taken out in the names of the deceased victims of the fire incident occasioned by the Appellant, substituting them with the names of their personal representatives and guardian. The Appellant raised a preliminary objection challenging the jurisdiction of the court to hear the application having been brought by deceased persons. The application for amendment and the preliminary objection were taken together and the trial court granted the application for amendment but in the ruling, no mention was made of the preliminary objection though the court indicated that the Appellant filed a counter affidavit when none was filed. The Appellant not satisfied with the said ruling filed a Notice of appeal at the Court of Appeal Lagos State, challenging the said decision of the High Court.

 

Held

Appeal Allowed.

 

ISSUES FOR DETERMINATION

➢   Whether the failure of the trial court to consider or pronounce on the Appellant’s preliminary objection dated 11th day of November 2013 in its ruling of the 10thMarch 2014 constitutes a denial of the Appellant’s right to fair hearing?

➢   Whether the learned trial Judge was right when he entertained and granted the 1st to 12th Respondents application for leave to amend the writ of summons and statement of claim?

Rationes

JURISDICTION – IMPORTANCE OF JURISDICTION

“Jurisdiction is the life wire to any adjudication as held in the case of National Union Of Road Transport Workers & Anor V Road Transport Employers Association Of Nigeria (2012) LPELR – 7840 (SC) where the apex court reiterated the importance of jurisdiction in the following words:

“It has been pronounced by this court several times that jurisdiction is very fundamental.  It is the life wire of a case which should be determined at the earliest opportunity.  If a court has no jurisdiction to determine a case, the proceedings remain a nullity abinitio no matter how well conducted and decided, this is so since a defect in the competence is not only intrinsic but extrinsic to the entire process of adjudication. See MADUKOLU V NKEMDILIM (1962) SCNLR 341; OLOBA V AKEREJA (1988) 3 NWLR (Pt.84) 5508.” Per Fabiyi, J.S.C.“

–          PER Y.B. NIMPAR, J.C.A

PRELIMINARY OBJECTION – DUTY ON COURTS TO CONSIDER A PRELIMINARY OBJECTION BORDERING ON JURISDICTION

In the case of Barrister Orker Jev V Sekav Dzua Iyortyom Elc (2014) 1157 Page 1, the Supreme Court held as follows:

“Let me quickly add here that a preliminary objection which borders on jurisdiction cannot be brushed aside by the court but must be considered by the court regardless of the manner in which it was raised.”

–          PER Y.B. NIMPAR, J.C.A

COURT – DUTY ON COURTS TO FIRST DETERMINE THE QUESTION OF JURISDICTION

“A court is naked and exposed without jurisdiction.  That is why superior courts have always admonished trial courts to first determine the question of jurisdiction before taking any step.  See also the cases of Okarika V Samuel [2013] 7 NWLR (Pt 1352) 19; Osakwe V Federal College Of Education (Technical) Asaba [2010] 10 NWLR (Pt. 1201) 1; Cadbury Nig Plc V F.B.I.R [2010] 2 NWLR (Pt. 1179)”. PER Y.B. NIMPAR, J.C.A

AMENDMENT OF THE WRIT – REQUIREMENT FOR CONSIDERING THE AMENDMENT OF A WRIT

“There is a difference between a challenge to the jurisdiction of the court and an objection to the amendment of the writ duly issued.  The trial court must state categorically that it has jurisdiction before the merit of the amendment can be considered.  Failure to do so also infringed on the right of the Appellant to have a decision one way or the other on the said application”. PER Y.B. NIMPAR, J.C.A

RESOLUTION OF ISSUES BEFORE THE COURT – DUTY ON COURTS TO RESOLVE ALL ISSUES BEFORE IT IN DETERMINATION OF A SUIT

“Silence is not one of the ways to resolve an issue, courts are enjoined to resolve all issues presented to it for resolution, see Nwokedi V Egbe (2005) 9 NWLR (Pt. 930) 293 where that court held thus:

“It is the duty of the a court to consider, whether of first instance or appellate court all the issues that have need joined by the parties and raised before it for determination. In Okonji V Njokanma (1991) 7 NWLR (Pt. 202) 131, the Supreme Court has held that it is the duty of a court, whether of first instance or appellate to consider all the issues that have been joined by the parties and raised before it for determination.  If the court failed to do so without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every court has a duty to hear, determine and resolve such questions.”

–          PER Y.B. NIMPAR, J.C.A

 

BREACH OF FAIR HEARING – EFFECT OF A BREACH OF FAIR HEARING 

“The trial court erred by denying the Appellant hearing on its objection; it is settled that a breach in fair hearing nullifies the proceedings, see the cases of Orugbo V Una (2002) 16 NWLR (Pt. 792)175 at 199; Alabi V Amoo (2003) 12 NWLR (Pt. 835); Adigun V A.G. Oyo State (1987) 1 NWLR (Pt. 53) 687; Obodo V Olomu (1987) 3 NWLR (Pt. 59) 111 and Okafor V A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659.“ PERY.B. NIMPAR, J.C.A

 

PRELIMINARY OBJECTION – WHETHER A PRELIMINARY OBJECTION CAN BE IGNORED BY THE COURT

“In the case of Onyekwuluje V Animashaun (1996) 3 NWLR (Pt. 439) 637 at 644 the court held as follows:

“I do not agree that the objection could be ignored.  The court is duty bound to express in writing whether it agreed with the objection or it did not.  The issue may be technical in nature but where technicality touches a fundamental objective to fair hearing it cannot be ignored, it is a cardinal principle of the administration of justice to let a party know the fate of his application whether properly brought before the court, it will amount to unfair hearing to ignore an objection raised by a party or his counsel against any step in the proceedings”. PERY.B. NIMPAR, J.C.A

 

PARTIES TO AN ACTION – CATEGORIES OF PERSONS WHO CAN COMMENCE AN ACTION

“It is trite beyond citing of authorities that actions are commenced by juristic persons, either human beings or incorporated bodies given legal personalities to sue and be sued.  There are undoubtedly two recognized capacities of persons who can sue in law as stated by the apex court in the case of A.G. Federation V A.N.P.P (2003) 18 NWLR (851) 182 thus:

“The law recognizes two categories of persons who can sue and be sued.  They are natural persons with life, mind and brain, other bodies or institutional having juristic personality.  In Alhaji Mailafia Trading And Transport Corporation Limited V Verities Insurance Company Limited (1986) 4 NWLR (Pt. 38) 802, the court held that a party who should commence action in court must be a person known to law, that is, a legal person. ……………………………………………………………………………………………………………………………………………………

The proposition was that no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly, or by common law, either (a) legal person under the name by which it sues or is sued or (b) a right to sue or be sued by that name.” PER Y.B. NIMPAR, J.C.A

 

LEGAL PERSONALITY – WHETHER A DEAD PERSON HAS LEGAL PERSONALITY

“The apex court in the case of Chief John Ehimigbai V Omokhafe V Chief John Ilavba Oje Iboyi Esekhomo (1993) LPELR – 2649(SC) held thus:

“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 legal personality from the date of his death and as such, can neither sue nor be sued personally or in a representative capacity.  The personality of a human being is extinguished by this death.  The common law principle expressed in the maxim action personalis moriturcum 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.  See Kareem V Wema Bank Ltd (1991) 2 NWLR (Pt.174) 485; Akunmoju V Mosadolorun (1991) 9 NWLR (Pt. 214) 236 (CA) and Hodge V Marsh (1936) A.E.R 484.”

–          PERY.B. NIMPAR, J.C.A

 

VOID ACTION – CONSEQUENCE OF A VOID ACTION

“Where an action is void in law, it is then incurably defective. See the case of Odu‘a Investment Co Ltd V Talabi (1997) 10 NWLR (Pt. 523) 1 at 21.” PERY.B. NIMPAR, J.C.A

 

COMMENCEMENT OF ACTION – STATUS OF A SUITE INSTITUTED IN THE NAME OF A DEAD PERSON

“An action brought in the name of a dead person is out rightly incompetent, see Ironbar V F. M. F. (2009) 15 NWLR (Pt. 1165) 506.” PER.Y.B. NIMPAR, J.C.A

 AMENDMENT OF A DEFECTIVE WRIT OF SUMMONS –WHETHER AN AMENDMENT OF A DEFECTIVE WRIT OF SUMMONS CAN CURE THE DEFECT

“Amendments go back to the original date of the process amended and since the original process is defective, the amendment cannot cure that defect, as a valid process cannot replace a void process.  The writ of summons is an initiating process and therefore must be valid to invoke the jurisdiction of the court.  See the case of Alhaji Fatai Ayodele Alawiye V Mrs Elizabeth Adetokunbo Ogunsanya (2012) LPELR – 1966(SC) where the Supreme Court held as follows:

“Again, the initiating processes being nullities have fundamentally robbed the trial court of the jurisdiction to entertain and enter judgment in this suit so also the lower court’s decision on appeal therefrom and the resultant Notice of Cross – appeal also filed in this matter; again, I so find.  It follows from so holding that the instant suit not having been initiated by due process of law is a nullity.  See Mcfoy V U.A.C. Ltd (1962) AC. 152; Madukolu V Nkemdilim (1962) 1 ANLR 587 at 595 PER BAIRAMAIN JSC, this court has found that to the effect that a court is competent when:

1. It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction. And there is no feature in the case which prevents the court from exercising its jurisdiction; and

iii. The case comes before the court initiated by due process of law, upon fulfillment of any condition precedent to the exercise of jurisdiction………………………………………………… Being initiating processes their voidity, permit me to repeat, has destroyed the foundation of causes in this matter rendering them void ab initio, again, see Macfoy V U.A.C. (1962) AC 152“. PERY.B. NIMPAR, J.C.A

 

Statutes Referred To:

Court of Appeal Act

Legal Practitioners’ Act.