AYODELE v. OKUNUGA & ORS
(2022)LCN/16326(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Wednesday, August 03, 2022
CA/IB/247/2017
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
CHIEF OLU AYODELE (Representing The Liworu Family Of Kadun, Sagamu) APPELANT(S)
And
1. MR. LEYADI KASALI OKUNUGA 2. MRS. MORENIKE SADIKU 3. MR. OLUDAYO JAIYE ABUDU 4. MR. YINKA OGUNMU YIWA 5. MRS. MUSILI AMODU NUREN (Representing The Nuren Okunuga Esulana Family) RESPONDENT(S)
RATIO
WHETHER OR NOT A JUDGMENT ENTERED SUBSEQUENTLY TO THE DEMISE OF A SOLE PARTY WHETHER OR NOT SUED IN A REPRESENTATIVE CAPACITY IS VALID
Any judgment entered subsequent to the demise of the sole party either plaintiff or defendant whether or not sued in a representative capacity is a nullity. See: Akumoju vs. Mosadolorun (1991) 9 NWLR (pt. 214) 236. There is a finding to that effect at the lower Court in the ruling appealed against. This is what I think, the appellants herein and their counsel should address as a fundamental question but failed. See further, decisions in Oloba vs. Akereja (1988) 7 SCNJ 56; Utih vs. Onoyivwe (1991) 1 NWLR (pt. 165) 166. PER HUSSAINI, J.C.A.
THE POSITION OF LAW ON WHEN A JUDGMENT OF THE COURT CAN BE SET ASIDE
Thus, a judgment of Court can be set aside when:
– the judgment was obtained by fraud or deceit; such judgment can be impeached or set aside by means of an action which may be brought without leave.
– When the judgment is a nullity.
– When it is obvious that the Court was misled into giving Judgment under a mistaken belief that the parties consented to it.
– When in a cross-appeal the respondent’s cross-appeal was not considered in the judgment.
– Where the judgment was given in the absence of jurisdiction.
– Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. See: Inyang v. Chukwuogor (2007) All FWLR (pt. 344) 165, 184-185; Igwe vs. Kalu (2002) 14 NWLR (pt. 787) 435. PER HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The High Court of Ogun State sitting in Sagamu on the 2nd day of March, 2011 in the ruling delivered the same date refused an earlier application made to it to set aside the judgment of the same Court dated the 13th day of June 2001 delivered by Hon. Justice O. A. Adesola. Consequent upon this refusal, the appellant approached this Court for an Order for extension of time as would enable him seek leave to appeal the ruling.
Upon the leave granted in this Court on the 7th June, 2017 for extension of time to appeal the said ruling of the High Court of Ogun State as aforesaid, (pages 155-156 of the record of appeal) the appellant, Chief Olu Ayodele filed his Notice of Appeal on the 9th June, 2017 comprising of four (4) Grounds of Appeal.
After the transmission of the record of appeal, the parties in compliance with the rules of Court filed and exchanged their briefs of argument in terms of the: –
1. Appellant’s brief of Argument filed on the 5th July, 2017.
2. Respondents’ brief of argument filed on the 24th April, 2018 and deemed filed on the 9th May, 2022.
3. Appellant’s Reply brief filed on the 9th May, 2022.
All the briefs were adopted by the respective learned counsel at the hearing on the 9th May, 2022.
In the brief of argument for the appellant are the following three (3) issues identified for determination of Court, namely: –
– Whether the Learned Judge has the requisite jurisdiction to hear and determine the Application for setting aside dated and filed on 15th day of January 2010 by the Respondent was right to have granted the said application on 2nd day of March 2011 by setting aside the judgment alleged to have been given in the absence of the defendant on 13th June 2001 without any Application for Extension of time in consideration of the case of N.A WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 cited by the Appellant (Grounds 1 and 2 of the Appellant’s Notice of Appeal.)
– Whether the decision in BINTUMI VS. FANTAMI (1998) 13 N.W.L.R (Part 581) 264 is an application(SIC) authority to set aside judgment delivered in a representative capacity in which the cause of action survived a dead party- (Ground 3.)
– Whether the Learned Judge exercised his discretion judicially and judiciously in setting aside the judgment having regard to the facts and circumstances of this case. (Ground 4.)
The Respondents on the other hand by their brief of argument filed on their behalf have similarly identified three (3) issues for determination at pages 4-5 namely: –
1. Whether the Respondents’ said motion on Notice dated 4th day of January, 2010 was in the form of an application to set aside a default judgment in which case a prior order of Court seeking to extend the time within which to file the application was required, in consequence of which the Judge of the lower Court had no jurisdiction to entertain and grant the said application filed without prior order of Court extending the time within which to file it.
2. Whether the learned Judge of the lower Court was right in setting aside the earlier judgment of O. A. Adesola on the ground that the same had been delivered against a sole Defendant sued in a representative capacity but who had died as at the time of delivering(SIC) of the judgment, without an order substituting the deceased with another named Defendant(s).
3. Whether the learned Judge of the lower Court exercised his judicial powers properly in setting aside the said earlier judgment delivered by Honourable Justice O. A. Adesola.
The two sets of issues reproduced as above are similar in their content. In the consideration of those issues in this appeal, I shall abide by the three (3) issues submitted by the appellant in his brief of argument in addressing this appeal. The said three (3) issues again are reproduced as below: –
1. Whether the Learned Judge has the requisite jurisdiction to hear and determine the Application for setting aside dated and filed 15th day of January 2010 by the Respondent, was right to have granted the said application on 2nd day of March 2011 by setting aside the judgment alleged to have been given in the absence of the defendant on 13th June 2001 without any Application for Extension of time in consideration of the case of N.A WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 cited by the Appellant (Grounds 1 and 2 of the Appellant’s Notice of Appeal.)
2. Whether the decision in BINTUMI VS. FANTAMI (1998) 13 N.W.L.R (Part 581) 264 is an application(SIC) authority to set aside judgment delivered in a representative capacity in which the cause of action survived a dead party. (Ground 3.)
3. Whether the Learned Judge exercised his discretion judicially and judiciously in setting aside the judgment having regard to the facts and circumstances of this case. (Ground 4.)
Learned appellant’s counsel arguing issue No. 1, alluded to the judgment of lower Court delivered on the 13th June, 2001 in suit No. HCS/47/96 to submit that the judgment under reference was given in (i) default of appearance (ii) default of defence and there was no application for extension of time to apply to set aside the judgment. Secondly, that the application to set aside judgment must be considered on its merit and the Court must make specific order for extension before any order can be made on whether or not to set aside that default judgment. We were further referred to the decision Williams & Ors vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145. Sanusi v. Ayoola (1992) 9 (NWLR) (pt. 265) 275, 300. Muhu Okabia Community Bank Nig. Ltd vs. Chancellor Okonkwo & Ors. (2009) 5 NWLR (pt. 1134) 401, 416.
In the instant case on appeal it is argued that the respondent failed to apply for an enlargement of time vide the application made or filed on their behalf on 15th January, 2010 contrary to Order 44 Rule 4 of the Ogun State High Court (Civil Procedure) Rules 2008, being the applicable Rules of Court in 2010 and 2011. We were urged to hold that in the absence of compliance with the principles of law set out in Williams vs. Hope Rising Voluntary Funds Society (supra) and provision under Order 44 Rule 4 of the High Court (Civil Procedure) Rules of Ogun State, the ruling of the High Court appealed against and delivered on the 2/3/2011 setting aside the judgment delivered on the 13th June, 2001, cannot be allowed to stand. We were so urged and to set aside the said ruling which set aside the judgment delivered on 2001 in suit No, HCS/97/96 and restore the said judgment.
We were further urged to hold that by the failure of the Respondent to first seek leave for extension of time to set aside the default judgment, the lower Court, automatically was divested from exercising jurisdiction over that application but since the lower Court proceeded to hear and grant the application thereby setting aside the judgment as aforesaid, the order/ruling made to that effect was inconsequential and a nullity.
Still on the issue the of jurisdiction of the lower Court to entertain the case, it was further contended for the appellant that the Order made at that Court on 7th January, 2010 sequel to the application brought by the respondents for substitution, by which the Court joined the respondents as representatives of Nuren Okonuga Esulana family, said to be an unknown party to the suit was made without jurisdiction of the Court among other reasons. We were urged to so hold. He relied on the decisions in: Cornelius Anjorin Lebile vs. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria, Ugbonla & 3 Ors. (2003) 2 NWLR (pt. 804) 399, 424 -425; Ochonma vs. Unosil (1965) NWLR 321. We were urged to resolve this issue in favour of the appellant and set aside the ruling of the lower Court delivered on 2nd March, 2011.
Arguing per contra on issue No. 1, learned respondents’ counsel submitted that the application before the lower Court was not in the form of an application made to set aside a default judgment or judgment in default of appearance hence the respondents were not obliged to file their application within a space of 6 days after the delivery of judgment set aside neither are the respondents under any duty to seek for leave for extension of time to file that application. To that extent, it is argued that the principle in Williams vs. Hope Rising (supra) and Aina vs. Abiodun (supra) did not apply given the fact that the respondent to the judgment did not only enter appearance but had filed his defence to the claim. It is argued for the respondents that the ground for their application was on account of the nullity of the judgment set aside, the same having been delivered against the only defendant who had died even before the judgment was entered. In reference to the affidavit in support of the application for setting aside the judgment at paragraph 5-14, pages 72-73 of the record of appeal and the further affidavit of the respondents, argued that the judgment obtained against the respondent was at that material time, obtained against a dead man, in the person of Jimoh Okunuga and this, according to the learned respondent’s counsel, has nullified that judgment, citing in support, the decision in Bintuni vs. Fantami (1998) 13 NWLR ( pt. 581) 264 hence Orders 10 and 20 of the High Court (Civil Procedure) Rules of Ogun State respectively, being provisions relating to default judgment and default of appearance, respectively do not apply to this case. It is further argued that Order 30 of the High Court (Civil Procedure) Rules of Ogun State, does not also apply to the issue on hand. It is further argued that since the appellant failed or refused to substitute the late Jimoh Okunuga against whom judgment was given the respondents as a group were in order when, collectively, they approached the lower Court to seek the setting aside of the judgment of the 13/6/2001 so far as that judgment affect their collective interest. The case of Sken Consult Ltd vs. Ukey (2001) 49 WRN 63 was cited and relied upon.
Learned respondents’ counsel gave a list of the circumstances under which a judgment of a Court can be set aside, including the instant case, where he said, the judgment was a nullity hence there is no time limit within which to approach the Courts to have that judgment set aside. He cited the decision in Inyang vs. Chukwugor (2007) All FWLR (pt. 344) 156, 184-185; Ugba vs. Suswam (2015) 1 WNR 1, 44-47. We were urged to resolve issue 1 in favour of the Respondents.
Resolution of Issue No. 1
Appellant’s grouse in this appeal is on account of failure of compliance on the part of the respondents with the rules requiring for leave for extension of time within which they can apply to set aside the subject judgment under Order 44 Rule 4 of the High Court of Ogun State Civil Procedure Rules. Secondly, that such an application seeking to set aside that judgment should be made or brought within six (6) days after the entry of such order or judgment sought to be set aside.
In the course of his submission, learned Counsel for the appellant referred us to the decision in Williams vs. Hope Rising (supra) and Sanusi vs. Ayoola among others. In William’s case (supra) the facts relevant to the issue on hand can be stated thus:-
The respondent (in William’s case) was absent at the hearing of the appellants’ claim for damages for trespass to land and injunction at the High Court. The trial Judge had taken evidence from two (2) witnesses for the plaintiffs (appellants) and later gave judgment in their favour. More than three (3) weeks later after the delivery of judgment the Respondent came up with an application filed on the 16th March, 1977 wherein he prayed the Court for an Order for extention of time within which to apply to set aside the judgment the same having been made to the Court after the period of six days within which he was required by the Rules of the High Court of Lagos State to be made; an order relisting the said matter for trial on its merits and an Order setting aside the said judgment obtained by the Plaintiffs(appellants) in the absence of the respondents. The trial Judge granted the application on 4th July, 1977. The appeal to the Court of Appeal was dismissed by the majority judgment of the Court. Appellants’ appeal to the Supreme Court was allowed. The Supreme Court in allowing the appeal set aside the judgment of both the Court of Appeal and that of the trial Judge.
The significant point of difference in William’s case (supra) and the instant case on appeal is the fact that as at the time judgment sought to be set aside was delivered at the trial Court in the instant case on appeal, the respondent was already deceased such that at the time judgment was delivered there was no named or living defendant on record of the trial Court capable to taking any of the procedural steps required to set aside that judgment within the prescribed period of time of six or 7 days, as contradistinguished from William’s case (supra) which emphasized on the need for the respondent (alive) who was out of time to apply for enlargement of time and for leave to set aside the subject judgment.
In Sanusi Vs. Ayoola (1992) 9 NWLR (pt. 265) 275, the trial Court after several adjournments, finally heard the case in the absence of the defendant and his counsel and the learned trial Court delivered a default judgment in the Plaintiff’s favour granting him the reliefs sought. The defendant filed a motion in the same High Court asking the Court to set aside the judgment and order. The learned trial Judge after hearing the application granted defendant’s request. The appeal to the Court of Appeal was allowed and the Court set aside the Order of the trial Court. The defendant appealed to the Supreme Court who dismissed the application. Again, the decision in Sanusi’s case (supra) like in William’s case (supra) there was a living defendant as at the date the Judgment set aside was delivered.
The Judgment set aside in the current case, cannot therefore be said was a default Judgment in terms of non-appearance of defendant or default Judgment in terms of default of defence in view of the fact that the defendant before his demise did not only enter Memorandum of Appearance but indeed filed a defence hence provisions of Orders 10 and 20 of the Ogun State High Court (Civil Procedure) Rules, do not apply to this case on appeal. Taking the facts contained in the Affidavit in support of the Motion to set aside Judgment as appear at pages 71-73 of the record and the further affidavit of the Respondents at pages 96-97 of the record and Juxtaposing same with the facts contained in the Counter-Affidavit of the Appellants herein at pages 83-85 of the record of appeal, one cannot but conclude that as at the date the Judgment set aside was delivered on the 13th June, 2001, the respondent to the suit, that is, Mr. Jimoh Okunuga, had died a month before and was buried on the 13th May, 2001. The trial Court, in the ruling appealed against delivered on the 2nd march, 2011, found as such when the Court held at page 145 of the record thus:-
“…Even if the affidavit evidence of the Applicants conflict as to whether the said Jimoh Okunuga died on 11th or 12th May, 2001, witnesses suffice to show that he was buried on 13th May, 2001 before the judgment of the Court delivered on 13th June, 2001.”
It is on account of this finding that the defendant to that judgment not being alive at the date judgment was delivered, that the lower Court further held at page 146 of the record that: –
“It is however also the law that both parties to a case must be living persons as at the date when judgment was delivered.”
The decision in Bintumi vs. Fantami (1998) 13 NWLR (pt. 581) 264 is apt. If therefore there was no living defendant in the instant case on appeal as distinguished from Sanusi’s case (supra) and in William vs. Hope Rising Volutary Funds Society(supra) how can it be expected (of him, the deceased) to file an application to set aside that judgment within a space of 6 or 7 days after the delivery of that judgment or to seek for extension of time to apply to set aside that judgment? This is why I am in complete agreement with the respondents herein and their counsel that in circumstances such as this, the person who is affected by an order of Court which can properly be described as a nullity, is entitled, ex debito justice, to have it set aside on the authority of the decision in Sken Consult Ltd. vs. Ukey (2001) 49 WRN 63; Ugba vs. Suswam (2015) 1 WRN, 1, 44–47. The respondents herein approached the lower Court as a group when their collective interest was threatened by the appellants over the subject matter of dispute. They cannot be faulted for taking the steps as they did to approach the lower Court to seek to set aside that judgment. They do not need an order for extension of time to do so. Thus, a judgment of Court can be set aside when:
– the judgment was obtained by fraud or deceit; such judgment can be impeached or set aside by means of an action which may be brought without leave.
– When the judgment is a nullity.
– When it is obvious that the Court was misled into giving Judgment under a mistaken belief that the parties consented to it.
– When in a cross-appeal the respondent’s cross-appeal was not considered in the judgment.
– Where the judgment was given in the absence of jurisdiction.
– Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. See: Inyang v. Chukwuogor (2007) All FWLR (pt. 344) 165, 184-185; Igwe vs. Kalu (2002) 14 NWLR (pt. 787) 435.
A judgment obtained against a dead person as in the instant case on appeal, is a nullity. See Bintumi vs. Fantami (supra). Issue No. 1 is resolved in favour of the respondents.
Issue No. 2
Whether the decision in Bintumi vs. Fantami (1998) 13 NWLR (pt. 581) 264 is an application (sic) authority to set aside judgment delivered in a representative capacity in which the cause of action survived a dead party?
The submission made for the appellant under Issue No. 2 is that the decision inBintumi vs. Fantami (supra) and relied upon by the lower Court only relates to suit instituted and defended in a personal capacity in contradistinction to the representative capacity of the instant case before the lower Court. According to the appellant’s counsel, an applicable authority, rather is the decision in Re: Otuedon (1995) 4 NWLR (pt. 397) 655, 667 in which it was held by the Supreme Court that in a representative capacity where the plaintiffs or defendants die and the cause of action survives the dead, then the suit still subsists. According to the learned counsel for the appellant, the lower Court misconstrued the principles relating to suits instituted and defended in a representative capacity with that of the suit instituted and defended in a personal capacity. Learned appellants’ counsel further cited decisions *in Prof. B. J. Olufeagba & Ors. Vs. Prof. Shuaib Oba Abduraheem & Ors. (2009) 18 NWLR (pt. 1173) 384, 450–451. Mbanefo vs. Molokwu (2014) All FWLR (pt. 742) 1665 (SC).
Learned appellant’s counsel argued that as at the 12th May, 2001 when Mr. Jimoh Okunuga, the respondents’ representative was reported to have died, proceedings in the judgment set aside had been concluded as at 7th May, 2001 but judgment only reserved hence the death of Mr. Jimoh Okunuga did not terminate the case in which he was sued in a representative capacity where the cause of action survived the deceased. We were urged to hold that the lower Court was wrong in relying on the decision in Bintumi vs. Fantami (supra) and to resolve issue No. 2 in favour of the appellant.
In response to the submission made for the appellant, it is argued for the respondents that appellants’ counsel erroneously interchanged subsistence of a cause of action after the death of one of the parties leaving a sole party with the subsistence of the same cause of action without parties. Learned respondents’ counsel argued that there is a difference between named and unnamed parties in a representative capacity suit. It is argued for the respondent that the decision in Bintumi vs. Fantami (supra) reiterated the general principles of law that applies to suits instituted either in a personal or representative capacity. We were urged to hold that the principles in Bintumi vs. Fantami (supra) was correctly applied by the lower Court. We were further referred to the decision in Akumoju vs. Mosadolorun (1991) 9 NWLR (pt. 214) 236; a case similar to the instant case on the facts, where it was held that a judgment obtained against a dead person is a nullity and cannot bind the deceased nor his personal representatives.
We were urged to resolve issue No. 2 in favour of the respondents.
Resolution of Issue No. 2
I have considered the submissions made by counsel on both sides on the applicability or otherwise of the decision in Bintumi vs. Fantami (supra) to the instant case on appeal as opposed to the decision in Oketie & Ors. Vs. Olughor & Ors. (1995) 4 NWLR (pt. 392) 655, 667, otherwise known as:Re: Otuedon. The facts in Bintumi vs. Fantami (supra) can be stated thus: –
The appellant and his father instituted action against one Bintumi Modu Sogu at the Upper Sharia Court Maiduguri for declaration of title to a piece of land and judgment was entered in their favour and against the said Bintumi Modu Sogu. The appellant and his father instituted action against one Bintumi Modu Sogu at the Upper Sharia Court Maiduguri in declaration of title to a piece of land and judgment was entered in their favour and against the said Bintumi Modu Sogu. Bintumi Modu Sugu appealed the judgment of the said Upper Area Court to the High Court of Borno State, sitting at Maiduguri which allowed the appeals and ordered a re-trial. Upon the conclusion of the retrial the Upper Area Court 1, this time around entered judgment in favour of Buntumi Modu Sogu. Appellant’s father who seemed to be the only plaintiff in the retrial of the suit, appealed the judgment to the High Court, but before judgment was delivered, (eventually against him), the man had died. Appellant then filed this application at the Court of Appeal seeking to be substituted for his own deceased father and for the substation of the Respondent for his own deceased Bintumi (Bintumi too had died shortly after the delivery of the judgment by the High Court), with the view of appealing as an interested party. The Court of Appeal dismissed the application on the grounds that the issue of substitution of Applicant for his deceased father would not arise as the judgment of the High Court was a nullity, the same having been delivered at a time when Appellants father had died.
The facts in Re:Otuedon (supra) are that, all the named Appellants died after the Court of Appeal delivered judgment in the appeal and during the pendancy of the appeal at the Supreme Court. Judgment of the Court of Appeal had been delivered in the life time of them in their representative capacity. At the Supreme Court the application for subtitution was granted to enable the appellants prosecute their appeal.
It can be seen therefore that the facts in Re:Otuedon (supra) did not relate to a judgment delivered either for or against a party, who had died before the judgment was delivered, even though the suit including the appeal related to suit/appeal filed in a representative capacity.
The facts in Bintumi vs. Fantami (supra) are similar to the facts in the instant case on appeal and the trial Court rightly relied and applied the principles in Bintumi vs. Fantami (supra). Indeed, the sole representative of the respondents in the judgment set aside at the trial Court having died as at the time that judgment was delivered, rendered that judgment a nullity. Issue No. 2 is resolved against the appellant.
Issue No. 3
Whether the learned Judge exercised its discretion judicially and judiciously in setting aside the judgment having regard to the facts and circumstances of this case.
The view taken by the appellants and their counsel is that the lower Court had failed to exercise its discretion judicially and judiciously in that the lower Court failed to take cognisance of certain facts contained in the counter affidavit of the appellant which allegedly, were not controverted by the respondents. Learned appellants’ counsel alluded to paragraphs 6, 7, 8, 9, 10 and 16 of the affidavit in support of the application seeking to set aside the judgment delivered on 13th June, 2001.
Learned appellant’s counsel further referred us to paragraph 4 of the appellant’s counter-affidavit in reaction to the said above paragraphs of the affidavit. It is argued that had the lower Court directed its mind to this fact stated or deposed to in the Counter-affidavit of the appellant, it would have dawned on the Court that all other members of Okunuga Esulana family to which the deceased Jimoh Okunuga belong were always going to the Court to know the status of their case in the proceedings leading to the judgment set aside. Therefore in reliance on the decision in J.O. Anolieto Enterprises Nigeria Ltd. vs. UTB Nigeria Ltd. (2001) FWLR (pt. 69) 1334, 1346; In Re:Miss Adejumoke Odutola (2002) FWLR (pt. 119) 1624, 1633; University of Ilorin vs. Miss Victoria Oyalana (2001) FWLR (pt. 83) 2193, 2206 submitted that facts in affidavit evidence which were not contradicted are deemed admitted. It is argued that the failure of the lower Court to act on those uncontradicted facts rendered the findings of the lower Court in the ruling appealed against, suspect and urged on this Court therefore, to intervene to right the wrong, in reference to the decision in Oyeyemi vs. Irewole Local Government (1993) 1 NWLR (pt. 270) 462, 484. We were urged to resolve issue No. 3 in favour of the appellant.
The argument of learned counsel for the Respondent on issue No. 3 in response to those submissions of the appellant’s counsel can be found at paragraphs 4.3.1 to 4.3.10 in the respondents’ brief of argument and the same is noted.
Resolution of Issue No. 3
It appears to me that the appellants or their counsel in presenting the argument as they did under Issue No. 1 appear not to have fully grasped the issue on hand, being the validity of a judgment delivered at a time when the sole party (in the case Jimoh Okunuga) had died and who was not substituted before the judgment was delivered. Any judgment entered subsequent to the demise of the sole party either plaintiff or defendant whether or not sued in a representative capacity is a nullity. See: Akumoju vs. Mosadolorun (1991) 9 NWLR (pt. 214) 236. There is a finding to that effect at the lower Court in the ruling appealed against. This is what I think, the appellants herein and their counsel should address as a fundamental question but failed. See further, decisions in Oloba vs. Akereja (1988) 7 SCNJ 56; Utih vs. Onoyivwe (1991) 1 NWLR (pt. 165) 166. In the circumstances the lower Court rightly exercised its discretion in setting aside the subject judgment. Issue No. 3 is thus resolved against the appellant and in favour of the respondents.
All the three (3) Issues having been resolved against the appellant, the appeal fails hence the ruling of the lower Court delivered on the 2nd March, 2011 in suit No. HCS/91/96 setting aside the judgment delivered on the 13th June, 2001 is affirmed.
This appeal is dismissed with cost assessed in the sum of N100,000.00 against the appellant and in favour of the respondents.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother Sa’idu Tanko Hussaini JCA. I agree with the reasoning and conclusion that the appeal lacks merit and is hereby dismissed. I abide by all the consequential orders in the lead judgment.
ABBA BELLO MOHAMMED, J.C.A.: I have read in advance, the lead judgment just delivered by my learned brother, SAIDU TANKO HUSSAINI, JCA. I fully agree with and adopt the reasoning and conclusion made therein, that this appeal is devoid of merit. Accordingly, I also dismiss this appeal and in affirm the ruling of the lower Court delivered on 2nd March, 2011 in Suit No. HCS/91/96, setting aside the judgment delivered on 13th June, 2001.
Appearances:
Akinsumbo Samsondeen Akande, Esq. with him, Titilayo Margeret Arowosoge, (Miss) Esq. Sukurat Oluwadamilola Yusuff-Abdulkareem, Esq. (Miss), Adekemi Oluwamodupe Olusegun, (Miss) and Abraham Adewale Sokkefun, Esq. For Appellant(s)
E. I. Ikwugbado, Esq. For Respondent(s)