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In The Supreme Court of Nigeria  

On Tuesday , 11th day of July, 1989  

SC 35/1989

 

Before Their Lordships  

 

Kayode Eso

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Chukwudifu Akunne Oputa

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaji

......

Justice, Supreme Court

Ebenezer Babasanya Craig

......

Justice, Supreme Court

    

Between

 

Obi Nwanze Okonji 

Okonnkeo Okonji 

George Nwanze Okobi 

Onochi P. Eseji 

( for themselves and on behalf of Umuodogun family Ogboli Ibusa)

 

 

.......

 

 

Appellants

 

 

 And   

 

George Njokanma 

Amolo Onwugbenu 

Anthony Ogbogu 

( For themselves and on behalf of Ogbeide family)

.

......

 

Respondents

 

 

Judgment of the Court

Delivered by

Eso J.S.C

 

 

In this matter, there were two applications before the Court. We dealt with both on 13th June and reserved our reasons for the decisions we took in both. It would he better to go through each motion as one is sequel to the other.

 

As a preliminary, it is necessary to state few facts. The plaintiffs to the action are-

 

George Njokanma;

Amolo Onwugbenu; and

Anthony Ogbogu.

 

They took the action in a representative capacity "for themselves and on behalf of Ogbeide Family". The action was against –

 

Okwonkwo Okonji;

George Nwanze Okobi; and

Onochi P. Eseji.

 

These were sued in a representative capacity "for themselves and on behalf of Umuodogun Family Ogboli Ibusa". Indeed they were "substituted as such for the original defendants", who had died. These original defendants died one after the other and the last of them died on 7th December, 1988. It was not until 21st March, 1989 that an application was made to substitute the present defendants for those deceased original defendants.

 

But the matter is not as straight-forward as all that, for, on 13th February, 1989, that is five weeks before that application for the substitution of the defendants, the plaintiffs had filed an application seeking an order to strike out the defendants' notice of appeal to this Court on the ground of abuse of process. That abuse was stated in what the plaintiffs stipulated as is-sues for determination to wit.

 

2.1     How does the law view the posture of an action when it is brought against multiple defendants and all of such defendants die during the pendency of the action and the cause of action survives their death?

 

2.2     In such circumstances does it make any difference in law that the defendants are defending in a representative capacity?

 

2.3     In the circumstances set out in para. 2 1. above what is the effect of filing an application other than an application to substitute fresh defendants to carry on the proceedings?

 

And so, when Chief Olisa Chukura, S.A.N's motion dated 13th February, 1989 sought an order to strike out '~the proposed notice and grounds of Appeal filed by the defendants as appellants' Mr. H.A. Lardner met him with preliminary objection to the effect that the motion be struck out for the following reasons.

 

1.     Because the action herein abated and became defective upon the death of all the defendants by such abatement the action ceased to be properly constituted in that there was no defendant on the record who could resist the plaintiffs claim, the proceedings being in their nature hostile;

 

2.     Because the only applications then available to the plaintiffs were applications for the purpose of curing the defect in the suit by substituting fresh parties or preserving the subject-matter of the litigation pending the substitution of parties;

 

3.     Because at the time of filing the application to dismiss this Court would not itself justiciate on it as there was no respondent then alive;

 

4.    Because the authority of the defendants' legal practitioner to accept service of any application other than those stated above is revoked by the death of all his clients on the record;

 

5.    Because service of a motion or other process on any member of Umuodogun Family after the death of their last surviving representative would be invalid and a fortiori, service of such process on the Family’s counsel would also be invalid;

 

6.    Because subsequent substitution of some members of the said Family cannot relate back and convert delivery of a copy of the motion to their Family's counsel into valid service on them.

 

7.    Because the filing of a motion is a nullity;

 

8.     Because the service thereof is a nullity.

 

The question that must he answered is whether or not an appeal in a representative action abates on the death of all the parties named in that process. In Atanda v. Olanrewoju (1988) 4 N.W.L.R. (Pt.89) 394 this Court dealt with the same issue and gave a clear answer thereto. Oputa, J.S.C., said in his lead judgment which was concurred with by all the other members of the Court.

 

Every appeal needs the presence of parties to prosecute it. So when an appeal has been properly filed, on the death of the appellant, the appeal still subsists but it will need the substitution of a living party or an application of a person interested under Section 222(a) of the 1979 Constitution to be made a party in order to prosecute the said appeal. In Ezenwosu v. Ngonadi supra, Clement Ezenwosu sued Aaron Ngonadi for a declaration of title and injunction. Ngonadi was sued in his personal capacity and not, repeat, not in a representative capacity. The plaintiff, Clement Ezenwosu, won. An appeal was filed in the name of Aaron Ngonadi on 7/4/77. It was then discovered that Aaron Ngonadi died on 4/3/77. The appeal was therefore incompetent as a dead man having no legal personality could not have lodged a valid appeal. Aaron Ngonadi's son Peter Ngonadi as a person interested then applied under Section 222(a) of the 1979 Constitution to exercise the right to appeal to defend the property in the land claimed by his late father. His application was granted.

 

In Ezenwosu v. Ngonadi there was no competent appeal pending but there was a right to appeal which could under Section 222(a) of the 1979 Constitution be exercised by "any other person." A distinction ought to be drawn between "any other person" and 'any other party." In a representative action both the named plaintiffs or appellants and those they represent (the unnamed plaintiffs/ appellants) are all parties. If the named appellants die, the appeal does not die and any of the unnamed appellants would then be let in as persons represented to prosecute the appeal. These unnamed appellants will not need to apply for extension of time or leave to appeal for their appeal was already pending.

 

I think this pronouncement is explicit enough. When an action is instituted in a representative capacity and or against persons in representative capacity that action is not only by or against the named parties. They are also by and against those the named parties represent. Those are not stated nomine. Indeed, they may be one or two or more, indeed they may be legion. And so, if all the named parties die the action still subsists on behalf of or against those they represent but who have not been stated nomine.

 

As it is an action on trial, it is also when the matter is on appeal. The appeal, as the case may be, subsists but the action or the appeal, again, as the case may be, cannot be prosecuted until a living person has been substituted for the named dead party.

 

Now it has to be noted that a named party in a representative action is dominus litis. It is for this reason that care is always taken in choosing the representative. The named party, dominus litis as he is, remains so until judgment and in that case, he could discontinue, compromise, submit to dismissal just as he pleases. But where several people sue, they have like powers and if they are not satisfied with the conduct of the representative they may seek an order of the Court to add or substitute any other person even though he has not been named in the representative action. In Moon v. Atherton (1972) 2 Q.B. 435, this was done even where it prevented the action from being statute barred.

 

For this reason the preliminary objection of Mr. Lardner failed and I dismissed it.

 

In regard to the application itself, that is the application filed by Chief Olisa Chukura. S.A.N., on 13th February. 1988 seeking an order to strike out the "proposed notice and grounds of appeal" filed on 16th July, 1986, it has been discovered and agreed to by learned Senior Advocate himself that a Notice of Appeal was filed within time. The judgment of the Court of Appeal was given on 21st May, l986 and the notice of appeal was filed on 16th July, 1986, which makes the filing still within time.

 

Now, I have examined the grounds of appeal and I have concluded that ground 3 of the grounds which reads –

 

The learned Justices of the Court of Appeal erred in law in that portion of their judgment as follows:-

 

There was evidence that the said witness (OBIDI) in the previous 1931 proceedings was dead, contrary to suggestion of appellants' Counsel in his brief that there was no such evidence. If lie were alive at the time of the proceedings in the present case, lie would have had to be produced to give evidence and be cross-examined on his past admission. But as it turned out during the trial at the Lower Court, he was already dead by that time.

 

Particulars of Error

 

(i)     The complaint of the appellants on the admissibility of EXHIBIT 'B' was that at the stage when the evidence of OBIDI was sought to be tendered; no foundation was laid as to the whereabout of OBIDI in order to satisfy the conditions laid down for admissibility of such evidence under Section 20 of the Evidence Act or Section 3 thereof

 

(ii)     It was not open to the learned justices of the Court of Appeal and indeed of any Court to speculate upon matters which there was no evidence as evident in the portion of their judgment quoted.

 

is clearly a ground of law. It means therefore that these being a ground of law and having been filed within time the appellants have exercised their constitutional right and there is an appeal before this Court. The application of Chief Chukura therefore failed and it was dismissed.

 

I now come to the application made by Mr. H.A. Lardner, S.A.N., on behalf of the appellants and that is:

 

(a)    an Order substituting them for the deceased defendants/appellants to carry on as appellants the appeal herein for themselves and on behalf of Umuodogun Family;

 

(b)    an Order granting them extension of time to file their appellants' Brief of Argument or, alternatively, an Order fixing the time within which they shall file their Brief of Argument; and

 

(c)    such further and/or other Order or Orders as may seem fit in the circumstances of this case."

 

There are sufficient ground3 shown for the granting of this application. The last surviving of the appellants nomine died on 7th December, 1988. The record of appeal was collected on the 5th January, 1989. On the uncontroverted facts before this Court, it is clear that the applicants have only D been five days out of time before seeking an extension to file the appellants' Brief. This cannot by any means amount to inordinate delay. For this reason this Court granted the extension of time sought and the Court ordered that the appellants' Brief be filed and served on or before 13th July, 1989 while the respondents Brief would be filed within the normal time prescribed by the Rules of this Court thereafter.

 

All the above were my reasons for the conclusions I reached on 13th E June, 1989.

 

 

Judgment delivered by

Uwais , J.S.C.

 

 

Two applications were brought by the parties in this appeal. The application by each party was summarily disposed of on the 13th day of June, 1989 and we reserved till today our reasons for dismissing the applications.

 

I have read in draft the reasons for the ruling read by my learned brother, Eso, J.S.C. As the reasons, which are admirably stated, are the same as the reasons for which I agreed that both applications should be dismissed, I do not deem it necessary to add anything. I adopt the reasons as mine.

 

 

Judgment delivered by

Oputa , J.S.C.

 

I have had the privilege of a preview in draft of the lead reasons for ruling just delivered by my noble Lord and learned brother, Eso, J.S.C., and I am in complete agreement with his conclusions.

 

 

Judgment delivered by

Agbaje , J.S.C.

 

On 13th June, 1989 I overruled the preliminary objection by Mr. Lardner, S.A.N., on behalf of the appellants to the application on behalf of the respondents by their counsel. Chief Chukura, S.A.N., by notice of motion dated 13th February, 1987. The application was for an order striking out the Proposed Notice of Appeal filed by the defendants/appellants at the Registry of the Court of Appeal, Benin City on 16th July, 1986 on the grounds which were stated on the motion paper, which grounds are not relevant to the objection to the application. I indicated then that I would give my reasons for my ruling today. I now proceed to do so.

 

It is clear that the named defendants were sued in a representative capacity, i.e. for themselves and on behalf of Umuodogwu family Ogboli Ibusa. At the time the plaintiffs/respondents brought their application to strike out the notice and grounds of appeal of the defendants/appellants all the named defendants are dead. It is not suggested that in the circumstance the cause of action in the case now on appeal does not survive their deaths. However, the arguments of Mr. Lardner, S.A.N., on his preliminary objection to the application ran thus:

 

In the present appeal after the last surviving representative had died, the action abated and any proceedings filed would be nullities because all proceedings are suspended except those referred to in paragraph 4 above. Alternatively, if they are not nullities, service of them on counsel who previously appeared for the deceased parties is a nullity as he has no client or clients for whom he can, while the action remains abated, accept service. At this stage all the persons through whom the defendants are before the court are dead and there is nobody recognised by the Court or on the record through whom Umuodogun Family appears.

 

The exception which counsel conceded relates to an appeal from an order made exparte which is not the case here.

 

The significant point in the case in hand is that all the named defendants who are now dead were sued in a representative capacity. This court has held recently in Atanda v. Olanrewaju (1988) 4 NWLR (Part 89) 394 and Ede v. Nwidenyi, in Re Ugadu (1988) 5 NWLR (Part 93), 189 that in a representative action both the named plaintiffs or defendants and those they represent are parties to the action. However, the representative plaintiff or defendant is dominus litis until judgment. So for the purpose of initiating any process in the representative action such process must be by and in the name of the named plaintiff or defendant.

 

The present application by the plaintiffs/respondents to strike out the notice and grounds of appeal of the defendants/appellants was by and in the name of the named plaintiffs who are all alive. So the application cannot be faulted on the ground that it was not by and in the name of a living named party. It is the named party on the other side against whom the order is sought who is dead. In that circumstance, in my judgment, the application cannot be adjudicated upon in court until any unnamed defendant has been substituted for the named defendants who are dead.

 

My understanding of the case of Opebiyi v. Oshoboja & Anor. (1976)9-H 10 S.C. 195 upon which Mr. Lardner relied heavily in the objection to the present application is that it is saying no more than what I have hitherto said above namely that when a representative plaintiff or defendant sues as a representative defendant he is the sole plaintiff or defendant as the case may be and is dominus litis until judgment and furthermore for the purposes of initiating any process in the representative action such process must be and in the name of the named plaintiff or defendant. Again no process in a representative action can be validly adjudicated upon when the named plaintiffs or defendants are all dead and another named plaintiff or defendant has not been substituted for the deceased.

 

One only has to remind oneself of the rule of court which permits the bringing of a representative action for one to see that the contentions of Mr. Lardner, neither of them, namely that in a representative action like the one B in hand where all the named defendants are dead and the cause of action survives their deaths, the action will abate and service of any hearing notice of motions or other process on any member of the persons represented or on counsel for that class of persons will not be good and sufficient service on the defendants, can be correct. The local rule says:

 

where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested. (Italics mine)

 

Surely, Mr. Lardner in this case is appearing not only for the named defendants but also for those unnamed defendants represented by the latter.

 

In this regard too, I would like to refer to the following passage in the judgment of Lord Denning, M.R., in Moon v. Atherton (1972)2 Q.B. 435 at 441 which has something to say about representative action and the amendment of its title:-

 

1n a representative action, the one person who is named as plaintiff is, of Course, a full party to the action. The others, who are not named, but whom she represents, are also parties to the action. They are all bound by the eventual decision in the case. They are not full parties because they are not liable individually for the costs. That was held by Eve, J. in Price v. Rhondda Urban District Council (1923) W.N.228. But they are parties because F they are bound by the result.

 

What then is to happen when the named plaintiff decides to withdraw? It seems to me that then it is open to any one of those whom she represents to come forward and take the place of the named plaintiff. The case comes within Ord.15, R.6, which enables a party to be added whose presence is necessary. It also comes within Ord.20, R.5 (1) which says: " . . . .the court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct." In those rules the word "party" is used in the same sense as it is in the definition in section 225 of the Supreme Court of judicature (Consolidation) Act 1925, which says that: "Party’ includes every person served with notice of or attending any proceeding, although not named on the record." So it includes one of the persons represented, even though not named in the writ.

 

In my opinion, those rules enable the court to amend these proceedings by inserting the name of Mrs. Art instead of the named plaintiff. This is necessary in order to do justice. If it were not so, the named plaintiff might discontinue, or the defendant might settle with the named plaintiff, and then leave the other unnamed plaintiffs out in the cold. It might be too late for them to issue a new writ because of the Statutes of Limitation. That cannot be right. It seems to me that if, in a representative action, the named party falls out for any reason, the court has ample power to substitute one of the unnamed parties as the plaintiff, and to bring him in as at the date of the issue of the original writ. ( Italics mine).

 

This decision will apply in my judgment in a case where a named party dies and the cause of action survives his death as it is the case now. So, I cannot accept the submission of Mr. Lardner that upon the death of the last surviving named defendant this action abates.

 

It is for the above reasons and the fuller reasons given in the lead Reasons for Ruling of my learned brother, Kayode Eso, J.S.C. which I have had the benefit of reading in draft that I dismissed the objections on 13/6/89.

 

 

Judgment delivered by

Craig , J.S.C.

 

On the 13th June, 1989 the Court heard arguments in respect of the two applications which came before it and reserved its ruling till today, 11th July, 1989.

 

In this respect, I have read in draft, the Reasons for Ruling given by my learned brother, Eso, J.S.C. and I agree entirely with his statement of the law and his legal conclusions.

 

For the reasons contained in the said lead Reasons for Ruling, I too would order that the appellants' brief be filed and served on or before 13th July, 1989 whilst the respondents' Brief would be filed thereafter within the normal time prescribed by the Rules of this Court.

 

 

Counsel

 

H.A. Lardner, S.A.N.

With A.F.O. Kwentua, V.A. Olutola and B.B.A. Coker

......

For the Appellants

Chief Olisa Chukura, S.A.N.

With L. Nylander

......

For the Respodents