Silence not way to resolve an issue – A/Court

In the Court of Appeal
HOLDEN AT LAGOS

Friday, March 4, 2016
Suit number: CA/L/320/2014
Between
HITECH CONSTRUCTION COMPANY LTD ……. Appellant
And
JUDE UDE (deceased) (Mrs. Chinwe Ezeti, suing as personal representative of the 1st plaintiff) & 13 others … Respondents
Judgement
(Delivered by Yargata Byenchit Nimpar)
This appeal is against the decision of the Federal High Court in a ruling delivered by Hon. Justice M. H. Kurya on the 10th day of March, 2014 wherein the lower court granted the respondents leave to amend their writ of summons in terms of substituting the 1st to the 12th plaintiffs with their personal representatives and guardians. The writ was taken out in the names of the deceased victims of the fire incident occasioned by the appellant. The appellant, via a notice of preliminary objection challenged 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 dated the 19th day of March, 2014 and filed on the 20th March, 2014 setting out 3 grounds of appeal, the appellant filed his brief of arguments dated the 16th April, 2014 filed on the same date. The 1st to 12th respondents filed their respondents’ brief on the 18th May, 2014 and dated on the same day but deemed on the 25th June, 2014. The 13th and 14th respondents did not file any brief.

The appellant in its brief of arguments distilled two issues for determination as follows:
1. 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.
2. Whether the learned trial judge was right when he entertained and granted the 1st to 12th respondent’s application for leave to amend the writ of summons and statement of claim.

ISSUE ONE:
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 10th March 2014 constitutes a denial of the appellant’s right to fair hearing.

RESOLUTION:
The contention of the appellant under this issue is simply that its preliminary objection was not considered thereby denying it fair hearing. The preliminary objection dated 11th November, 2013 was duly moved and taken along the 1st to 12th respondents’ motion to amend the writ of summons. The preliminary objection challenged the jurisdiction of the court to entertain the application and the entire suit. However, the ruling of the trial court did not mention the preliminary objection nor any issues raised therein. Instead it talked about a counter affidavit which was never filed. This is a very serious blunder on the part of the trial court. There was no obligation on the court to take the motion to amend the writ along with the preliminary objection. Nonetheless, because the preliminary objection is on jurisdiction, the trial court should have considered the preliminary objection first because of the importance of jurisdiction to any proceedings. Jurisdiction is the life wire to any adjudication as held in the case of NATONAL 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 ab initio 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.

In view of the importance of jurisdiction, the trial court should have determined the challenge to its jurisdiction one way or the other before proceeding to grant the application to amend the writ. Besides, it is the general rule to determine a challenge to jurisdiction first. If the court has no jurisdiction, then granting the application for amendment of the writ of summons would amount to waste of time and a nullity. 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.”

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).
The trial court in the ruling did not mention any thing about jurisdiction but merely swept it under the carpet of a mere correction of counsel. This error is a serious breach. 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. 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.”

The argument that the preliminary objection was construed as a counter affidavit cannot hold water because the two are separate processes that have no relationship what so ever. More so, the appellant did not file a counter affidavit. The application to amend and the preliminary objection should have two different rulings to meet up with the requirement of due procedure in trial. 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. 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.”

In essence, I am of the opinion that the trial court did not consider the preliminary objection of the appellant. The first issue is resolved in favour of the appellant.

ISSUE TWO:
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.

RESOLUTION:
This second issue is the kernel of the appeal. 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 recognised capacities of persons who can sue in law as stated by the apex court in the case of A.G. FEDERATON 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.

The contention here is that the 12 named plaintiffs are all dead persons who had been dead before the filing of the writ in their names alongside the 179 other unnamed persons. The respondents admit that fact and explained it by saying it was counsel error to name them as plaintiffs while naming those to represent them under the names of the deceased plaintiffs in bracket. Their explanation swayed the court into granting their application to substitute the dead plaintiffs’ with their representatives. The question the appellants is now asking is whether the court can substitute the dead plaintiffs with living persons since the suit was initiated by dead persons and void ab initio? Their argument is that there was no valid writ in the first place that can be amended.

I have viewed the writ of summons and it can be clearly seen that the 12 plaintiffs clearly named were also described in bracket as dead/deceased and under each of the dead parties are names of their representatives while the other 179 persons were not named on the face of the writ. Can dead persons sue? 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.”

This court followed that Supreme Court decision in the case of MOHAAMED WOKILI NDASUKO V ADAMU MOHAMMED &ORS (2007) LPELR – 8738(CA) where it held that under our law a dead person ceases to be legal person or to have legal personality and as such he can neither sue nor be sued personally, see also EZENWOSU V NGONADI (1988) ALL NLR 254 at 265. The writ therefore is void ab initio as the named plaintiffs were dead before the initiation of the action. If there were other living parties named on the writ then, that could have saved the writ even if it were only one person. Here, only dead persons were named and others unnamed. It does not matter that the names of the other 179 persons were named in the body of the statement of claim. The statement of claim is not the initiating process but the writ. Also the fact that the 1st – 12th respondents referred to “179 others” as parties to the suit does no good since that is not a name. A writ cannot be issued in the name of unnamed person(s) or without a named party. By the time the motion to amend was filed it was founded on nothing and therefore the court was wrong to have even considered it. It was incurably defective and the effect of that removes the carpet under the feet of the court because it lacks competence to act on the writ. Where an action is void in law, it is then incurably defective. See the case of ODU’A INVWSTMENT CO LTD V TALABI (1997) 10 NWLR (Pt. 523) 1 at 21. 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.

It was also erroneous to think that an application to amend would cure the fundamental defect as assumed by the trial court. 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:
i. 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
ii. 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”.

The situation here can be likened to a writ taken out by a legal firm not qualified to do so under the Legal Practitioners’ Act. There cannot be an amendment to regularize such defect as it eats up the root upon which the claim can stand and be sustained. The contention that it is a mistake of counsel which should not be visited on the litigant is untenable in law as any tolerable mistakes take place within a suit properly commenced not one that is a nullity. Any counsel’s mistake on a void process follows the process to voidity. It is a grave error that the law cannot countenance, but there may be other options open to the respondents to do the needful but certainly not within this void suit. Sentiments apart, the suit is void ab initio and cannot be remedied. The second issue is resolved in favour of the appellant. The ruling of the trial court delivered on the 10th day of March, 2014 is set aside for want of jurisdiction; the preliminary objection of the appellant is sustained. The claim of the respondents is hereby struck out for want of jurisdiction. Appeal succeeds.
I make no order as to cost.