ALH. AUDU TURAKI & ORS V. ALH. IBRAHIM MODIBBO (DECEASED) & ANOR (2011)

ALH. AUDU TURAKI & ORS V. ALH. IBRAHIM MODIBBO (DECEASED) & ANOR

(2011)LCN/4527(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of May, 2011

CA/J/218/07

RATIO

DEATH OF A PARTY TO A PENDING ACTION: POSITION OF THE LAW AS REGARDS THE DEATH OF A PARTY TO A PENDING ACTION

In the case of: In re Otuedon (1995) 4 NWLR (392) 655 @ 667 E-F, the Supreme Court per Iguh, JSC held thus: ”… apart from the legal rights of administrators, executors or the personal representatives of a deceased person, a dead person ceased to have any legal personality from the moment of death and as such can neither sue nor be sued either personally or in a representative capacity. Where, however, the cause of action survives the death of a party, such action is not terminated by death. This principle also applies to an appeal. See Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 533 and Clement Ezenwosu v. Peter Ngonadi (1988) 3 NWLR (Pt. 81) 163.” His Lordship, Iguh, JSC also had this to say in: In re Adeosun (2001) 4 SC (Pt. 1) 41 @ 60 lines 10 – 26: “It is a well settled principle of law that where a sole or surviving plaintiff dies or a sole or surviving defendant also dies, provided the cause of action is such that survives, the fact of the death of both parties will not cause the abatement of the suit although the proceedings will be temporarily stayed until an order could be obtained substituting the names of such other persons for the deceased parties. An order could be made with the leave of court for the action to be continued in the names of the legal representatives or personal representatives of the parties. See Sellors V. Goode (1892) 3 L.R. IR 298; Laleye V. Imoru 18 N.L.R. 96. The Rules of Court in this regard do not touch upon the substantive law relating to the survival of causes of action. If the cause of action is such that terminates on the death of either party, for example a claim in defamation, then that would be the end of the action. See Batthyany V. Walford (1887) 36 Ch. D 269; James V. Morgan (1909) 1 K.B. 564. But if the cause of action is such that survives, then the Rules of Court on the subject come into play. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

ABATEMENT OF APPEAL: WHETHER WHEN AN APPELLANT OR A RESPONDENT IN AN APPEAL DIES, THE APPEAL WILL BECOME ABATED

The death of a party obviously affects the continuity of an appeal as only a juristic person can maintain an appeal. When an appellant or a respondent in an appeal dies, the appeal becomes abated. However the abatement is not in the same strict sense as abatement of an action in common law in which the action dies absolutely and will require to begin afresh. The abatement of an appeal due to the death of a party only denotes a suspension of the appeal subject to the powers of the court of appeal to permit substitutions. SEE RE: ALUKO (NO 1) 1992 2 NWLR (PT 223) 341. Whether an appeal survives a deceased party is predominantly dependent on the nature of the appeal. PER UCHECHUKWU ONYEMENAM, J.C.A.

SUPREMACY OF THE CONSTITUTION: FUNCTION OF A CONSTITUTION

JUSTICES

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

1. ALH. AUDU TURAKI
2. ALH. GARBA MAIKARKASHI
3. ALH. SHA’ABAN ANAS (DECEASED) Appellant(s)

AND

ALH. IBRAHIM MODIBBO (DECEASED)
ALH. SALLAU ABDULRAHMAN – PARTY SOUGHT TO SUBSTITUTE ALH. IBRAHIM MODIBBO (DECEASED) Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the leading Ruling Judgment): By a motion on notice dated and filed on 14th March 2011 the 1st and 2nd Appellants applicants seek the following orders:
a. An order substituting Alhaji Sallau Abdulrahman as the respondent in the place of Alhaji Ibrahim Modibbo (deceased) in Appeal No. CA/J/218/07 and all other processes before this court.
b. An order striking out the name of 3rd appellant, now deceased as appellant in this appeal.
And for such further or other orders as the court may deem fit to make in the circumstances of this case.
The grounds for the application are:
i. That the respondent and 3rd applicants are dead and the appeal survives them.
ii. That this appeal involves the interpretation of the provisions of the constitution of Hausawan Makurdi.
iii. That the appeal also involves the determination of which version of Hausawan Constitution is valid.
The application is supported by a 6-paragraph affidavit deposed to by one Blessing Onyenwere, secretary in the law firm of Chief S.O. Agbo & Co., solicitors to the appellants/applicants. Attached thereto is Exhibit A (notification of death). In opposition to the application one Martha Onyeneke, Litigation Secretary in the firm of Amuwa Olatunde & Co., solicitors to the deceased respondent and the party sought to be substituted deposed to a 7-paragraph affidavit dated 30/3/2011.
When the application came up for hearing on 4/4/2011, learned counsel for the respondent, Amuwa Olatunde Esq. opposed the grant of prayer (a) but had no objection to prayer (b) Consequently Chief S.O. Agbo, learned counsel for the applicants urged the court to grant prayer (b) With regard to prayer (a) he relied on the affidavit in support of the application and Exhibit A attached thereto. He submitted that the appeal involves the interpretation of the constitution of Hausawan Makurdi and which of the versions tendered before the trial court is valid. He submitted that the subject matter of the appeal does not die with the occupant of the position of Hausawan Makurdi. He submitted that by Exhibit A, the person sought to be substituted claims to be the person elected as the new Hausawan Makurdi. He submitted that it is his duty to work with the valid version of the constitution. He noted that the counter affidavit deposed to on behalf of the party sought to be substituted does not deny these facts. He urged the court to deem this as an admission and to grant the application.
In opposing prayer (a), Mr. Amuwa Olatunde of counsel relied on all the paragraphs of the counter affidavit. He submitted that with the death of Alhaji Ibrahim Modibbo, the Sarkin Hausawan of Makurdi the appeal is dead. He referred to paragraphs 4, 5 and 6 of the counter affidavit. He argued that the matter before the lower court was not brought in a representative capacity and therefore the appeal does not survive the deceased. He urged the court to refuse the prayer. In resolving this issue it is necessary to consider the position of the law regarding the death of a party to pending proceedings.
In the case of: In re Otuedon (1995) 4 NWLR (392) 655 @ 667 E-F, the Supreme Court per Iguh, JSC held thus:
”… apart from the legal rights of administrators, executors or the personal representatives of a deceased person, a dead person ceased to have any legal personality from the moment of death and as such can neither sue nor be sued either personally or in a representative capacity. Where, however, the cause of action survives the death of a party, such action is not terminated by death. This principle also applies to an appeal. See Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 533 and Clement Ezenwosu v. Peter Ngonadi (1988) 3 NWLR (Pt. 81) 163.”
His Lordship, Iguh, JSC also had this to say in: In re Adeosun (2001) 4 SC (Pt. 1) 41 @ 60 lines 10 – 26:
“It is a well settled principle of law that where a sole or surviving plaintiff dies or a sole or surviving defendant also dies, provided the cause of action is such that survives, the fact of the death of both parties will not cause the abatement of the suit although the proceedings will be temporarily stayed until an order could be obtained substituting the names of such other persons for the deceased parties. An order could be made with the leave of court for the action to be continued in the names of the legal representatives or personal representatives of the parties. See Sellors V. Goode (1892) 3 L.R. IR 298; Laleye V. Imoru 18 N.L.R. 96. The Rules of Court in this regard do not touch upon the substantive law relating to the survival of causes of action. If the cause of action is such that terminates on the death of either party, for example a claim in defamation, then that would be the end of the action. See Batthyany V. Walford (1887) 36 Ch. D 269; James V. Morgan (1909) 1 K.B. 564. But if the cause of action is such that survives, then the Rules of Court on the subject come into play.
Reproduced hereunder are the deceased plaintiff’s claims as per paragraph 20 of his amended statement of claim at pages 87 – 88 of the record:
1.”A declaration that the 2nd and 3rd Defendants are not competent to dethrone the plaintiff as the Sarkin Hausawan Makurdi.
2. A declaration that the purported resolution of Committee of Board of Trustees of Hausawan to dethrone the plaintiff in their resolutions of 29/11/2004 is null and void and of no effect as the appointment of the 1st defendant as Sarkin Hausawan Makurdi be set aside.
3. A declaration that it is only the Kingmakers/Hakimai of delegates of wards that can dethrone the plaintiff for breach of the relevant section of the constitution of Hausawan Makurdi which is not in place yet and not the Board of Trustees.
5 A declaration that the plaintiff is still the Sarkin Hausawan Makurdi and therefore entitled to function as such by enjoying all the benefits of his office as Sarkin Hausawan Makurdi and not the 1st defendant.
6 An order of perpetual injunction restraining the defendants, their agents and privies from interfering with the throne of Sarkin Hausawan Makurdi and preventing the plaintiff from enjoying all the aura and benefits pertaining to the stool of Sarkin Hausawan Makurdi.
A careful perusal of the above reliefs shows that prayers 1, 2, 5 and 6 are personal to the deceased plaintiff and could not survive him. However prayer 3 deals with who, as between the Kingmakers/Hakimai of delegates of wards and the Board of Trustees is entitled to exercise powers relating to the breach of the constitution of the Hausawan Makurdi.
At the trial, the respective parties relied upon two different versions of the constitution of the Hausawan Makurdi (Exhibits H and J). The learned trial Judge delivered judgment in favour of the respondent (now deceased) on 9/3/07. He found inter alia, at page 217 of the record, that the steps taken by the Committee of Trustees of the Hausawan Association Makurdi through the 2nd and 3rd defendants to remove the 1st respondent as Sarkin Hausawan Makurdi were done without authority and in violation of the powers of the Kingmakers/Hakimai under articles 4, 8 and 9 of Exhibit H (one of the versions of the constitution) and the actions taken were quashed. He entered judgment in favour of the plaintiff against the defendants and granted all the reliefs in paragraph 20 of the amended statement of claim.
The defendants (appellants herein) were dissatisfied with the judgment and filed a notice of appeal containing 8 grounds of appeal. Grounds 2, 3, 5 and 7 of the notice of appeal challenge the reliance by the learned trial Judge on Exhibit H, one of the versions of the constitution of the Hausawan Makurdi, as opposed to Exhibit J, in reaching his decision. In paragraph 3 of the affidavit in support of this application, it is averred on behalf of the appellants/applicants as follows:
3. “(a) That the respondent in this case, Alhaji Ibrahim Modibbo died on 10th September 2008 as per the attached document marked as Exhibit A.
(b) That Alhaji Sallau Abdulrahman of No. 16 Sokoto Street, Makurdi, Benue State purports to have succeeded Alhaji Ibrahim Modibbo (deceased) as Sarkin Hausawan Makurdi.
(c) That the appeal also concerns of (sic) the interpretation of the provisions of the constitution of Hausawan Makurdi and which of the two versions tendered before the lower court is authentic.
(d) That unless an order is made by this court to substitute Alh. Sallau Abdulrahman with the deceased respondent, this appeal can not proceed to hearing.
(e) That the substitution of the deceased respondent with Alh. Sallau Abdulrahman will not be prejudicial to any of the parties.
(f) That the 3rd appellant is deceased which death occurred after this appeal was filed and entered in the court.
5. That Chief S.O. Agbo of counsel informed me in chambers on 14/3/2011 at about 12 noon concerning this case and I verily believe him that this appeal survives both the 3rd appellant and the respondent, Alh. Ibrahim Modibbo.”
Exhibit A dated 12/9/08 is a notification of death addressed to the Chairman, Makurdi Local Government, Benue State. Paragraphs 1 and 2 read as follows:
We humbly regret to notify you or the death or Alhaji Ibrahim Modibbo, the Sarkin Hausawan Makurdi which sad event took place on the 10th of September 2008 in Garki Hospital Abuja. He has since been buried according to Islamic rites. Main while (sic), Alhaji Sallau Abdulrahman has been elected as the new Sarkin Hausawa of Makurdi by the Hakimai (Kingmakers). This is in accordance with the Hausa tradition that immediately a Sarki dies an election for his replacement is done without delay.”
(Underlining mine)
From Exhibit A it is clear that a new Sarkin Hausawan, in the person of Alhaji Sallau Abdulrahman, the party now sought to be substituted has stepped into the shoes of the deceased respondent. As the Sarkin Hausawan, he would be expected to uphold and implement the provisions of the constitution of the Hausawan Makurdi. Indeed it was the alleged failure of the deceased respondent to abide by the provisions of the constitution that led to his dethronement, which gave rise to the suit before the lower court. The learned trial Judge, in declaring the acts of the 2nd and 3rd defendants (2nd and 3rd appellants herein) an exercise in futility and quashing same, relied on Exhibit H. It is the appellants’ contention that the authentic constitution of the Hausawan Makurdi is Exhibit J. The very foundation upon which the judgment was based is being challenged in this appeal. Whoever occupies the position of Sarkin Hausawan Makurdi must know which version of the constitution to implement. The party now sought to be substituted in this appeal would certainly be affected by the outcome of the appeal. In the event that it succeeds, the decision of the lower court would be reversed and the 1st appellant’s appointment made after the purported dethronement of the deceased respondent would stand. In effect the party sought to be substituted would be dethroned. It is therefore my humble view that this appeal survives the death of the respondent, as the party sought to be substituted has stepped into his shoes upon his death in accordance with Hausa tradition. I find merit in the application and it is granted as prayed:
1. Alhaji Sallau Abdulrahman is hereby substituted as respondent in this appeal No. CA/J/218/07 in place of Alhaji Ibrahim Modiboo (deceased).
2. The name of the 3rd appellant, Alhaji Sha’aban Anas (now deceased) is hereby struck out as an appellant in this appeal.
3. All the processes in this appeal shall be amended to reflect the orders made in 1 and 2 above.
I make no order for costs.

ALI ABUBAKAR BABANDI, J.C.A.: I have had the privilege of reading before now the ruling just delivered by my learned brother Kekere-ekun, JCA. I agree that the application for an order for substitution ought to be granted. Application succeeds. No order for costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the ruling of my learned brother, KEKERE – EKUN JCA.
I am in agreement with the reasoning and conclusion that the application has merit.
The appellants/applicants by motion on notice dated and filed 14/3/11 prayed the court for: –
(a) “An order substituting Alhaji Sallau Abdulrahman as the respondent in the place of Alhaji Ibrahim Modibbo (deceased) in Appeal No. CA/J/218/07 and all other processes before this court” among other prayers.
Paragraph 3 (a – e) of the applicants’ 6 paragraph affidavit states;
a. “That the respondent in this case Alh. Ibrahim Modibbo died on 10th September 2008 as per the attached document marked as exhibit ‘A’.
b. That Alh. Sallau Abdulrahman of No. 16 Sokoto Street, Makurdi, Benue State purports to have succeeded Alh. Ibrahim Modibbo (deceased) as Sarkin Hausawan, Makurdi.
c. That the appeal also concerns of the interpretation of the provisions of the constitution of Hausawan, Makurdi and which of the two versions tendered before the lower court is authentic.
d. That unless an order is made by this court to substitute Alh. Sallau Abdulrahman with the deceased respondent, this appeal cannot proceed to hearing.
e. That the substitution of the deceased respondent with Alhaji Sallau Abdulrahman will not be prejudicial to any of the parties”.
In their counter affidavit of 7 paragraphs, the respondents in paragraphs 4 and 5 stated;
“4.That with the death of late Alhaji Ibrahim Modibbo, the Hausawan Community elected Alhaji Sallau as his successor as the reign of late Alhaji Modibbo has ended as the present appeal involves who was the authentic and legally elected Sarkin Hausawan Makurdi between the 1st Applicant and late Alhaji Ibrahim Modibbo and not any other person as Alhaji Sallau Abdulrahman cannot be substituted for late Alhaji Ibrahim Modibbo as he was not a party to the suit in the Lower Court, and the suit was not filed in a representative capacity.
5. That the substitution of Alhaji Sallau Abdulrahman could not resurrect a dead appeal as this present appeal died with the respondent who died since 10/9/2008”.
The parties are in agreement that Alhaji Sallau Abdulrahman was elected the new Sarkin Hausawan after the death of the respondent. The issue is whether this appeal survives the respondent.
The death of a party obviously affects the continuity of an appeal as only a juristic person can maintain an appeal. When an appellant or a respondent in an appeal dies, the appeal becomes abated. However the abatement is not in the same strict sense as abatement of an action in common law in which the action dies absolutely and will require to begin afresh. The abatement of an appeal due to the death of a party only denotes a suspension of the appeal subject to the powers of the court of appeal to permit substitutions. SEE RE: ALUKO (NO 1) 1992 2 NWLR (PT 223) 341.Whether an appeal survives a deceased party is predominantly dependent on the nature of the appeal.
It is worthy of note that paragraph 3 (c) of the applicants’ affidavit was not countered by the respondent and as such it is deemed admitted. The combined effect of paragraph 3 (c) of the appellants/applicants’ affidavit and ground 2 of the Notice and Grounds of appeal on the one part; and paragraphs 15, 24 and 20 (3) of the respondent’s amended statement of claim at pages 86-87 of the record is that the appeal involves the interpretation of the provisions of the constitution of Hausawan Makurdi and the declaration of which version of the Hausawan constitution is valid.

A Constitution is a fundamental law of a state or nation that establishes the institutions and apparatus of government. It defines the scope of the powers of the leaders and guarantees individual civil rights and liberties. SEE BLACK’S LAW DICTIONARY 8th ed. Page 330. A Constitution transcends any individual as it is always made, enacted and given to every member of a society and has its binding force on all authorities and persons. In like manner, the Constitution of Hausawan Makurdi affects and binds its entire community even as the election, tenure and reign of any Sarkin Hausawan is governed by it. The interpretation and declaration of which version of Hausawan Constitution is valid affect the interest of every member of the Hausawan community. The Sarkin of Hausawan is first and foremost a member of the Hausawan community and his rule as Sarkin Hausawan is based on a valid Constitution. He is therefore concerned and interested in which constitution is valid and the manner the said constitution is interpreted. Alh. Sallau Abdulrahman having been elected the new Sarkin Hausawan Makurdi has interest in the valid constitution he will work with and as such qualifies as an interested party in this appeal. I therefore conclude that Alhaji Sallau Abdulrahman is an interested party and qualifies to be appealed against in this appeal. SEE MILITARY GOVERNOR, ONDO STATE V. AJAYI (1998) 3 NWLR (PT. 540) 27.
Finally, the application has merit and should be granted for these and fuller reasons in the lead ruling of my learned brother, Kekere-Ekun JCA. I also grant the application as prayed and make no order as to costs.

Appearances

CHIEF S.O. AGBOFor Appellant

AND

AMUWA OLATUNDEFor Respondent