ZANNAH v. BAGUDU & ORS
(2022)LCN/16660(CA)
In the Court of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, June 30, 2022
CA/S/36/2021(R)
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
SHETTIMA ZANNAH APPELANT(S)
And
1. FARUKU BAGUDU (JIHAB) 2. HAFIZ FARUK BAGUDU 3. ADAMU SULEIMAN RESPONDENT(S)
RATIO
WHETHER OR NOT AN ACTION CAN BE MAINTAINED OR COMMENCED IN THE NAME OF A DEAD PERSON
I think, the question here is a simple one and that is, whether action can be maintained, sustained or commenced in the name of a dead person? Can a dead person sue or be sued? Can he be proceeded against in an action or as in this case, in an appeal case?
I think not, the authorities one legion, see: (1) SGB LTD VS. BURAIMOH (1991) 1 NWLR (pt. 108) 428, 436; (2) APC VS. INEC (2014) LPELR–24036 (SC). In Buraimoh’s case (supra) the apex Court held: –
“It is settled law that a dead person ceases to exist in the eyes of the law and any cause of action pending against such a person automatically abates unless it is one that survives the person.”
In the case of Nzom vs. Jinadu(1987) 1 NWLR (pt. 51) 533, 539 the apex Court held among others, that: –
“The dissolution of legal person is analogues to the death of an ordinary human person… dead men are no longer legal persons in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights they can neither sue nor be sued.”
In APC V. INEC (supra) it was held inter alia that:
“Dead persons whether natural or artificial, lack the vires of initiating and maintaining an action, including an appeal, in the law Court, only living persons do.”
Just as the dead person lack the capacity to sue or be sued, a dead person cannot also be substituted with a living person as sought to be done in the application on hand see, Opebiyi vs. Oshoboja (1976) LPELR–2749 (SC). Notice of Appeal which has the name of a dead person as a party is incompetent, null and void and by that there can be no valid appeal before the appellate Court. Such Notice of Appeal cannot be amended substituting a living person for the dead litigant, see: further: Ezenwosu vs. Ngonadi LPELR- 1208 (SC); Lazard Brothers vs. Midland Bank (1932) 1 kb 617, 624 (CA). Certainly, you cannot place something on nothing and expect it to stand. It will collapse: McFoy vs. UAC (1961) Skey Consult Nigeria Ltd. vs. Ukey (1981) 1 SC 6, 15. PER HUSSAIN, J.C.A.
SAIDU TANKO HUSSAIN, J.C.A. (Delivering the Leading Judgement): The Applicant, Shettima Zannah vide the Motion on Notice filed on his behalf on the 8th March, 2022 prayed for an Order granting leave to the Applicant to amend his Original Notice of Appeal filed on the 21st January, 2021 by removing the name of Faruku Bagudu (Jihab) who is now deceased and substituting him with his son Hafiz Faruku Bagudu as contained in the proposed Amended Notice of Appeal, having survived the deceased. The applicant further seeks a deeming order in the event that the application to amend was granted on the 23rd May, 2022 when the application came up for hearing, learned counsel Munirat O. Yahaya Esq., who appeared for the applicant moved the Court in terms of the reliefs being ought while relying on the affidavit of five (5) paragraphs in support of the application. She further relied on the annextures attached to the application and marked Exhibits A and B, that is, the Notice of Appeal filed on the 23rd June, 2021 and the Proposed Amended Notice of Appeal respectively.
The application was accompanied with a Written Address filed the same date. Learned Applicant’s Counsel adopted this written address in urging the Court to grant the application. Hafiz Faruk is the person sought to be substituted in this application. He filed a Counter Affidavit of four (4) paragraphs to which is attached several documents marked as Exhibits 1-5 i. e the Notice of Appeal filed on the 19th June, 2017, the Notice of Appeal filed on the 26th November, 2018, the Certified True Copy of the death certificate of Faruk Bagudu, the Certified True Copy of Proceedings of Court, and the Notice of Appeal filed on the 21st January, 2021 respectively.
This Counter-Affidavit is similarly accompanied with a Written Address of Counsel. Upon the Counter-Affidavit and the Written Address of the person sought to be joined, being served, the Applicant in response thereto, filed a further affidavit on the 11th April, 2022 to which is annexed, the documents marked Exhibit ‘C’, being the copy of the order of Court granting the request of the Applicant for extension of time to appeal. This further and better affidavit of the Applicant is similarly accompanied with a Written Address of counsel and filed on the 11th April, 2022.
The facts which gave rise to this application i.e the Motion on Notice dated the 2nd March, 2022 and filed on 8th March, 2022 can be put into perspective. It all began with the judgment delivered at the High Court of Justice on the 20th March, 2017 in suit No. KB/HC/17/2016. Faruk Bagudu (Jihab) had claimed against Shettima Zannah and Adamu Suleiman, the Applicant and 2nd Respondent herein respectively, the sum of N32,029,238.3 (Thirty-Two Million Twenty-Nine Thousand, Two Hundred and Thirty-Eight Naira and Three Kobo) being the equivalent of $161,763.83. He had further claimed the sum of N5,000,000.00 (Five Million Naira) as general damages jointly and severally and as well as cost. The High Court of Kebbi State heard the case and granted the claim vide the judgment delivered on the 20th March, 2017 and the Court, in delivering its judgment ordered the defendant now the Applicant along with the 2nd Respondent to refund the 1st Respondent that sum of N32,029,238.3 together with general damages assessed at N5,000,000.00 (Five Million Naira) the claimant (now 1st Respondent). Dissatisfied with that judgment and order of the High Court, the Applicant sought for extension of time and by order of this Court made on 11th January, 2021 the time was extended hence the Applicant filed his Notice of Appeal on 21st January, 2021. In the course of the proceedings in this Court on the 22nd June, 2022 the claimant was reported to have died. He died on the 7th March, 2019.
In the Written Address filed along with the Motion on Notice, the Applicant identified two (2) issues for determination of Court namely:
1. Whether this Court can grant this application.
2. Whether the cause of action survived the deceased?
The 1st Respondent in the written address filed on his behalf has adopted the two (2) issues so identified by the Applicant in his written address. I want to believe that the two (2) issues can be modified and collapsed into one (1) issue and reformulated thus: –
“Whether given the facts and circumstances contained in the various affidavit evidence of the parties on both sides the application to amend Appellant’s Original Notice of Appeal filed on the 21st January, 2021 by removing the name of 1st Respondent who is now deceased and substituting him with his son, Hafiz Faruk Bagudu, is grantable?
I have given thought to the submissions made by the learned counsel on both sides in their respective written addresses. Before going any further let us look at the facts again, to see how events unfolded leading to the instant application.
1. Faruku Bagudu Jihab instituted an action at the High Court of Kebbi State vide a Writ of Summons and Statement of Claim as at pages 1–7 of the record of Appeal
2. The case went into hearing and at the end of which the trial High Court of Kebbi State find in favour of the claimant, Faruku Bagudu (Jihab) and against Shettima Zannah and Adamu Suleiman defendants.
3. By that judgment or findings made at the trial Court, the defendants, now the Applicant and the 2nd Respondent respectively, were ordered to make some refunds to the 1st Respondent herein. That order of the trial Court was made on the 20th March, 2017.
4. The claimant/1st respondent was represented by counsel on the said date when judgment was delivered at the trial Court but he gave up the ghost at a later date.
5. The fact of the death of the claimant 1st Respondent is documented given Exhibit ‘B’, the Certified True Copy of the document annexed to the Counter-Affidavit which reveal the date of the death of the 1st Respondent.
6. The first Respondent died on the 7th March, 2019.
7. The fact that the 1st Respondent is now late is not in dispute and this, the Applicant has also confirmed it vide his paragraph 4(c)of the affidavit in support of the Motion on Notice.
8. The death of the 1st Respondent notwithstanding, the Applicant herein as appellant has commenced proceedings against 1st Respondent vide the originating process filed on the 21st January, 2021 in Appeal No. CA/S/36/2021.
9. This Court had by the order made or given had extended time for the appellant/applicant to file his Notice of Appeal
10. As at the 21st January 2021 when the Notice of Appeal was filed, the 1st Respondent was already deceased.
11. The deceased had not been compensated nor the refund made to him before his exit.
Learned counsel on both sides in their written addresses have alluded to some of these points wherein Mr. Lagalo Dan Lagalo, learned counsel for the party seeking to be joined has considered among other things, that the Originating Process in terms of the Notice of Appeal filed on 21st January, 2021 was incompetent since same was filed or commenced in the name of a dead person and that being the case, the application taken to substitute or replace a dead person with a Living person (Hafiz Faruku Bagudu) cannot be sustained in law, citing a plethora of decided case on this point. We were urged to refuse the request and dismiss the application.
The point however, has been made by the learned counsel for the Applicant who has argued, by reference to the claim at the trial Court that so far as the suit in which judgment was entered in favour of the deceased before his demise, is a monetary claim, the deceased heirs or his successors in title can be called upon to step into his shoes, to claim his property being an action in rem not an action in personam.
I think, the question here is a simple one and that is, whether action can be maintained, sustained or commenced in the name of a dead person? Can a dead person sue or be sued? Can he be proceeded against in an action or as in this case, in an appeal case?
I think not, the authorities one legion, see: (1) SGB LTD VS. BURAIMOH (1991) 1 NWLR (pt. 108) 428, 436; (2) APC VS. INEC (2014) LPELR–24036 (SC). In Buraimoh’s case (supra) the apex Court held: –
“It is settled law that a dead person ceases to exist in the eyes of the law and any cause of action pending against such a person automatically abates unless it is one that survives the person.”
In the case of Nzom vs. Jinadu (1987) 1 NWLR (pt. 51) 533, 539 the apex Court held among others, that: –
“The dissolution of legal person is analogues to the death of an ordinary human person… dead men are no longer legal persons in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights they can neither sue nor be sued.”
In APC V. INEC (supra) it was held inter alia that:
“Dead persons whether natural or artificial, lack the vires of initiating and maintaining an action, including an appeal, in the law Court, only living persons do.”
Just as the dead person lack the capacity to sue or be sued, a dead person cannot also be substituted with a living person as sought to be done in the application on hand see, Opebiyi vs. Oshoboja (1976) LPELR–2749 (SC). Notice of Appeal which has the name of a dead person as a party is incompetent, null and void and by that there can be no valid appeal before the appellate Court. Such Notice of Appeal cannot be amended substituting a living person for the dead litigant, see: further: Ezenwosu vs. Ngonadi LPELR- 1208 (SC); Lazard Brothers vs. Midland Bank (1932) 1 kb 617, 624 (CA). Certainly, you cannot place something on nothing and expect it to stand. It will collapse: McFoy vs. UAC (1961) Skey Consult Nigeria Ltd. vs. Ukey (1981) 1 SC 6, 15.
The Notice of Appeal filed on the 21st March 2021 is in itself a fundamentally defective process hence no proceedings can be taken on such flawed process, otherwise, the proceedings so taken will be null and void. It is for this reason, I find myself unable to accede to the request or the prayer urging us to amend the Notice of Appeal under reference by substituting a non-juristic person with a juristic person hence the same i.e the Motion on Notice dated the 2nd March 2022 and filed on the 8th March, 2022 is refused and dismissed.
ALI ABUBAKAR BABAN GUMEL, J.C.A.: I have had the advantage of reading before now the well considered ruling just delivered by my learned brother, Hussaini, JCA. I agree with his reasonings and conclusion that this application is totally devoid of any merit. I therefore also refuse and accordingly dismiss it.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead ruling of my learned brother Sa’idu Tanko Hussaini, JCA. I agree with the reasoning and conclusion that the application is refused and is hereby dismissed. I abide by all the consequential orders in the lead ruling.
Appearances:
Hussaini Zakariyau, (SAN), with him, Firdausi Kabir, Esq. Munirat O. Yahaya, Esq. Sa’adatu Haruna Illo, Esq. Zainab Salihu, Esq. Najib Haruna, Esq. F. M. Jodi, Esq. S. O. Oladejo, Esq. and J. D. Adeyemi, Esq. For Appellant(s)
Lagalo Dan Lagalo, Esq. with him, Hamza A. Wala, Esq. N. D. Paul, Esq. and E. R. Akintoye, Esq. – for 1st Respondent For Respondent(s)
