AYONUWE AKPAMAKU V. IGBEN & ORS-1970

AYONUWE AKPAMAKU V. IGBEN & ORS

(1970) LCN/1779(SC)

In the Supreme Court of Nigeria

Friday, May 15, 1970


Case N
umber: SC. 137/1969

 

JUSTICES:

IAN LEWIS, JUSTICE, SUPREME COURT

ATANDA FATAI-WILLIAMS, JUSTICE, SUPREME COURT

SOWEMIMO, JUSTICE, SUPREME COURT

 

APPELLANTS

AYONUWE AKPAMAKU

RESPONDENTS

IGBEN & ORS

 

RATIO

LEGAL IMPLICATION OF DEATH OF A PARTY TO A SUIT

“The guardian ad litem is merely representing the defendant for the purposes of the suit and if the person represented dies then until his executor or administrator is substituted the action is in effect in abeyance. This is fundamental to the cause of action and it is not a mere irregularity. Per Lewis J.S.C.

 

LEWIS, J.S.C.:(Delivering the Leading Judgment): Declaration-Title to land-Guardian ad litem not a party to action-Merely representing defendant for purposes of suit-Where the person represented dies, then until his executor or administrator is substituted the action is in abeyance-Order 7 rule 13 of the High Court (Civil Procedure) Rules.
Appeal from the High Court (Mid-West). HELD:
(1) A guardian ad litem is not a party to the action. He is merely representing the defendant for the purposes of the suit and if the person represented dies then until his executor or administrator is substituted the action is in effect in abeyance. This is fundamental to the cause of action and it is not a mere irregularity.
guardian ad litem is not a party to the action. He is merely representing the defendant for the purposes of the sui    (2) Whilst as a matter of principle it would be perfectly proper to substitute the Administrator of the estate of the deceased Egharagbemi for him as defendant the Supreme Court could not see that it was in fact right here for the trial judge to do so when he did as there was neither any sworn evidence that the guardian ad litem was the administrator of the estate of Egharagbemi nor were the letters of administration produced to him, but he appeared to have acted merely on a statement of counsel in argument.
(3) Order 7 Rule 13 of the High Court (Civil Procedure) Rules put a guardian ad litem in a special category irrespective of the general definitions of “defendant” and “party” but where those definitions refer to a person being “entitled to attend” or “attending” this can only mean rightfully attending and if the basis by which they attend is taken from them then they are not rightfully attending even if, in fact as here, the guardian ad litem did attend the hearing.
(4) It was not appropriate to allow the appeal simpliciter as the action would be left up in the air, and equally it was not right to put the action back for re-hearing or allow it to be fought on a family representation basis as that was not how the present action was begun on the pleadings although it may have been so conducted by the guardian ad litem.
(5) The best course to take was to order the action to be struck out and then if the Plaintiffs were desirous of commencing a new action they could do so.
Appeal allowed: judgement of High Court set aside: action struck out.

Cases referred to:
Djukpan v. Orovuyovbe [1967] N.M.L.R. 287. Duke v. Davies [1893] 2 Q.B. 260.
Gajender v. Sirdaw [1961] E.A.L.R. 341.

 

Appearances

Ajayi For Appellant

 

AND

Odje For Respondent

 

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