CHIEF NWANYANWU IGWE & ORS V MR. SAMUEL AGWU IGWE
Appeal No: CA/PH/443M/2015
AREAS OF LAW:
ACTION, APPEAL, INTERPRETATION OF STATUTE, JURISDICTION
SUMMARY OF FACTS:
This application was filed pursuant to Section 36 and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999(as amended); Order 4 Rule 1, Order 7 Rules 1,2 and 10 and Order 15 of the old Court of Appeal Rules, 2011; Section 24(4) of the Court of Appeal Act, 2004 and the inherent jurisdiction of this Court seeking an order extending time within which the Applicant may seek the leave of this court to appeal, leave to appeal against the decision of the Rivers State Customary Court of Appeal Rumuogba, Obio Judicial Division in Appeal No. CA/PH/57/2009 – Chief Nwanyanwu Igwe & 4 Or. V. Mr. Samuel Agu Igwe delivered on 23rd February 2010.
The lower court dismissed the Applicant's application for leave to appeal on grounds that the Applicants were guilty of inordinate delay in making the application even though having held that the proposed notice of appeal disclosed prima facie good cause, that the proposed grounds of appeal questioned inter alia the jurisdiction of the trial lower court to grant vast area of Ovunwor unpartitioned family land to the Respondent who also is a member of the same family, a relief not claimed by the Respondent. Dissatisfied with the ruling of the lower court, the Applicants have filed the instant application before this court.
The lower court dismissed the Applicant's application for leave to appeal on grounds that the Applicants were guilty of inordinate delay in making the application even though having held that the proposed notice of appeal disclosed prima facie good cause, that the proposed grounds of appeal questioned inter alia the jurisdiction of the trial lower court to grant vast area of Ovunwor unpartitioned family land to the Respondent who also is a member of the same family, a relief not claimed by the Respondent. Dissatisfied with the ruling of the lower court, the Applicants have filed the instant application before this court.
HELD
Application Struck Out
ISSUE FOR DETERMINATION
Ø Whether the Application is not incompetent, as some of the purported Applicants were dead prior to the filing of this Applications in their names?
RATIONES
"ACTION PERSONALIS MORITURCUM PERSONAE" - IMPLICATION OF"ACTION PERSONALIS MORITURCUM PERSONAE",
"Based on the Common Law maxim "action personalis moriturcum personae", a personal action dies with the person who instituted the action. For a dead person ceased to have any legal personality from the moment of his or her death and as such he or she can neither sue nor be sued either personally or in a representative capacity. In the case of: In RE: Otuedon (1995)4 NWLR (Pt.392) p.655, the Apex Court per Iguh, JSC (Rtd.) at p.668, paras. C-D had the following to posit on this point thus:
A notice of appeal which is filed on behalf of or in the name of a dead appellant after his death is incompetent and null and void and the court cannot be asked to amend such a notice by substituting a living person or persons in place of the dead litigant(s). See Clement Ezenwosu v. Peter Ngonadi, supra. It is not a mere procedural defect or irregularity that an appeal has been filed in the name of a dead person. It is a radical and fundamental error which borders on the issue of jurisdiction. (The underlining is supplied by me for emphasis).
Therefore naming a non-juristic person like a deceased person in an action including an application not being a mere misnomer, "ex facie" renders such an action or application incurably incompetent since no legal person had been brought before the court ab initio. See the cases of: (1) Emepso J. Cont. Ltd. V. Corona S. & Co. (2006)11NWLR (Pt.991) p.365; (2) Registered Trustees of the Airtime Operators of Nigeria v. N.A.M.A. (2014) 8NWLR (Pt.1408) p.1 and (3) Obasi v. Mikson Est. Ind. Ltd. (2016)16NWLR (Pt.1539) p.335 at p.385, paras. D-G". PER O.F.OMOLEYE, J.C.A
CAUSE OF ACTION - WHETHER A CAUSE OF ACTION WHICH SURVIVES THE DEATH OF A PARTY IS TERMINATED BY THE DEATH OF SUCH PARTY
"However, this general common law principle has since been modified by statute. The present position is that unless a substantive law specifically makes provisions for non-survival of a cause of action, on the death of any person, all causes of action subsisting against or vested in him or her shall survive against or for the benefit of his or her estate as the case may be. Therefore, where the cause of action survives the death of a party, such an action is not terminated by death. Rather, recourse will be had to the relevant court under its rules for an order for the action to be continued in the names of the legal representatives or personal representatives of the deceased party, as the case may be. Contrariwise, where the cause of action does not survive, it must terminate on the death of either party and the suit must abate. This principle of law is equally applicable to appeal and applications. See the case of: (1) In Re: Aluko (No.1) (1992)2 NWLR (Pt.223) p.341 at p.347; (2) In Re: Otuedon (supra) at p.667, paras. E-F and (3) B. O. N. Ltd. v. Muri (1998) 2NWLR (Pt.536) p.153 at p.168, paras. E-G. PER O.F.OMOLEYE, J.C.A
REPRESENTATIVE ACTION - WHETHER AN ACTION COMMENCED IN A REPRESENTATIVE CAPACITY ABATES UPON THE DEATH OF SOME OF THE PARTIES
"From the affidavit evidence of the two parties herein, it is patent that in the action the subject-matter of this application, which is for declaration of title to land and the Applicants were sued in a representative capacity at the trial Court, the action would survive the parties. See the case of: Olufeagba v. Abdul-Raheem (2009)18 NWLR (Pt.1173) p.384 (SC), wherein the poser that called for resolution "inter alia" is, whether the death of three (3) out of fourty-four (44) appellants can invalidate the appeal as the action at the court of trial was instituted in a representative capacity (as in the instant case)? In resolving this poser, the learned Ogbuagu, JSC (Rtd.) had the following to say:
I have earlier depicted that the cause of action survives the dead plaintiffs. Their deaths cannot cause the suit to abate. It was erroneous for the majority justices of the court below to have found otherwise. The case of Whyte v. Jack (supra) heavily relied upon by the majority justices of the court below is inapplicable to the peculiar facts and circumstances of this case. It is not a sole plaintiff that died in this case in hand where there are 44 plaintiffs. The death of the two plaintiff's should not affect the rights and status of the remaining living plaintiffs. The suit survived and was rightly continued at the instance of the living plaintiffs. The death of two (now three) plaintiffs did not invalidate the case of the plaintiffs. It was preposterous to have found otherwise. Such led to a glaring miscarriage of justice. (The underlining is supplied by me for emphasis).
The erudite Fabiyi, JSC (Rtd.) in lending credence to the above holding, stated as follows:
It goes without any shred of doubt that the court can only assume jurisdiction over juristic persons. If a sole party to an appeal dies and there is no substitution, it hardly needs any gain-saying that the appeal ends. This was the position in the case of Nigerian Nurses Association v. A.-G., Federation (supra). In this appeal, it is agreed that three (3) out of the fourty-four (44) appellants have passed on. I do not for one moment feel that this should invalidate the whole case on appeal. This is because each of the remaining 41 appellants is in court in his/her own right, and if any claim is granted, such will enure to each of them individually and/or personally.
- PER O.F.OMOLEYE, J.C.A
LACK OF JURISDICTION - DUTY OF COURTS WHERE IT LACKS THE REQUISITE JURISDICTION TO ADJUDICATE ON AN ACTION
"In essence, this Court is devoid of the requisite jurisdiction to adjudicate upon the purported application of the Applicants and ultimately divested of its power to go into the meritoriousness of the other issues donated for determination by both the Applicants and Respondent. See the locus classicus case of: Madukolu v. Nkemdilim (1962)1 SCNLR p.341. See also the case of: Shell Petroleum Dev. Co. v. Isaiah (2007) 11NWLR (Pt.723) p.168 at p.180, to mention but a few out of the plethora of authorities on this all-important legal principle. In the case of: Egbele v. The Postmaster General (2010) LPELR-4362, this Court per Mukhtar, JCA on this principle held as follows:
As earlier observed, an issue of jurisdiction is fundamental and the singular pillar upon which the entire litigation hinges. The entire proceedings, would be reduced to a complete nullity, no matter how well conducted. For the reasons aforementioned, I am of the humble view that the court below rightly held that the suit as constituted by the appellant's writ of summons is within the exclusive jurisdiction of the Federal High Court and that it lacked jurisdiction to hear and determine same. However, in the circumstance the court below ought to have struck out the suit simplicita. This issue is resolved against the appellant and the related ground two of the appeal therefore fails. In the absence of jurisdiction every other issue abates. The other issue is consequently reduced to an absolute insignificance. (The underlining is supplied by me for emphasis).
- PER O.F.OMOLEYE, J.C.A
STATUTES REFERRED TO:
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Court of Appeal Act, 2004
Court of Appeal Rules, 2011
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