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BAMIDELE v. OGUNDIPE & ORS (2022)

BAMIDELE v. OGUNDIPE & ORS

(2022)LCN/16048(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Tuesday, March 29, 2022

CA/AK/04/2013(R)

   Before Our Lordships:

AyobodeOlujimiLokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale OlumuyiwaAbiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

PASTOR AJIWOJUOLORUN JOSEPH BAMIDELE APPELANT(S)

And

MRS. FUNMILAYO OGUNDIPE MRS. ESTHER BISI SAMUEL ASSISTANT INSPECTOR GENERAL OF POLICE ZONE 11, OSOGBO, OSUN STATE RESPONDENT(S)

 

RATIO

EFFECTS OF ACTIONS INSTITUTED AGAINST A DEAD PERSON

Generally, a dead person is no longer in the eyes of the law a person. He is a person who ceased to have any legal personality from the date of his death and as such, can neither sue nor be sued personally or in representative capacity; the personality of a human being is extinguished by this death – Ezenwosu Vs Ngonadi (1988) 3 NWLR (Pt 81) 163. In Bintumi Vs Fantami (1998)13 NWLR (Pt 581) 264, this Court at page 271 paragraphs E-F made the point thus:
“An action instituted by a plaintiff is always instituted against a living or a legal person. This is because a person on death is stripped of the totality of his legal personality and being no longer a legal person, he can neither sue or be sued. In other words, where the defendant ceases to enjoy the attributes of a legal person or juristic personality, he cannot be made a defendant strict sensu” -PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. 

COMMON LAW PRINCIPLE GOVERNING ACTIONS AGAINST DECEASED PERSONS

The law is that matters or appeal dealing with issues which are personal to a deceased person and matters in the nature of a personal action do not survive the death of a party and they usually abate on the death of the party. Actions which are predicated on personal rights or wrongs personally committed by a person dies with him. This is the essence in the common law principle which is expressed in the maxim actiopersonalismoritur cum persona, meaning a personal action does not survive death – Whyte Vs Jack (1996) 2 NWLR (Pt 431) 407, AbdulRaheem Vs Olufeagba (2006) 17 NWLR (Pt 1008) 280,Government of Cross Rivers State Vs Assam (2008) 5 NWLR (Pt 1081) 658, Iroeche Vs Izuogu (2020) 4 NWLR (Pt 1714) 211. Where, however, the action is not a personal action and can be prosecuted in the absence of the deceased party, it survives the death of the deceased party and someone else can be substituted to carry on the prosecution of the matter or appeal – Arowolo Vs Akapo (2007) All FWLR (Pt 345) 200, In Re: His Royal Highness, E. A. Saiki, The Otaru of Igarra (2012) LPELR-19791(CA), Ojo Vs Akinsanoye (2014) LPELR-22736(CA), Hadejia Vs Ladan (2017) LPELR-43368(CA) – PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. 

ON WHETHER OR NOT A CAUSE OF ACTION SURVIVES DEATH OF A PARTY

It is trite that the question of whether or not a cause of action survives the death of a party is one of law to be determined by the nature of the action or the capacity in which the dead party sued or was sued, and it is not dependent on the say so of a party – The Incorporated Trustees of the Jamat-Ul-Muslimeen Council of Lagos Vs Oki (2010) 1 NWLR (Pt 1176) 616, Deme Vs Bule (2017) LPELR-44396(CA). The Court, in determining whether or not the death of a party will terminate the case, must consider the peculiar aspect and the nature of the claim before it – Ebongo Vs Uwemedimo (1995) 8 NWLR (Pt 411) 22 – PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. 

WHAT THE COURT MUST DO IN DETERMINING A CASE MADE BY A PARTY

Now, what was the nature of the claim of the Appellant in the lower Court? It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings, or the averments in the affidavit of the party in the case commenced by originating summons, together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings or averments that states the case of the party – Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227,Adama Vs K.S.H.A (2019) 16 NWLR (Pt 1699) 501, Multichoice (Nig) Ltd Vs Musical Collecting Society of Nigeria Ltd. Gte (2020) 13 NWLR (1742) 415, Anyalewechi Vs Lufthansa German Airlines (2021) LPELR-55213(CA), Ostankino Shipping Co. Ltd Vs The Owners, The MT Bata (2022) 3 NWLR (Pt 1817) 367 – PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. 

THE PRINCIPLES GOVERNING A NECESSARY PARTY TO AN APPEAL

The law is that in such a situation, the entire cause of action of the Appellant cannot survive, notwithstanding the presence of the two other Respondents. In Ani Vs Ani (2017) LPELR-44322(CA), this Court opined thus:
“A necessary party, to an appeal must be before the Court but is in clear fulfillment of one of the tenets or principles of natural justice to wit: audi alteram partem – hear the other side and which has been given constitutional force by the fair hearing provisions in Section 36 of the 1999 Constitution. The provision of Order 15 Rule 3 of the Rules of this Court (supra) upon which the objector founded the preliminary objection under consideration, eloquently provides that an appeal shall be struck off the hearing list by the Court where an appeal has been set down for hearing and the Court is or becomes aware that a necessary party to the appeal is dead … In this instant appeal, the peculiar wordings of Order 15 Rule 3 is very clear and mandatory, in that the fact of the existence of other Appellants after the death and striking out of the name of the 5th Appellant is not sufficient to save this appeal from been struck out in the absence of a necessary party such as the 5th Appellant in the appeal. And I am of the view that it has herein before been sufficiently demonstrated that the 5th Appellant is a necessary party or the most essential Appellant in the instant appeal given the case of the Appellants as set up in the statement of claim and as the instant appeal is against the judgment in favour of the Respondents, on the points of law, it raised challenging the justice ability of the Appellants’ case. The 5th Appellant struck off this appeal is a necessary party for this appeal to be competent. Therefore the fact of the death of the 5th Appellant and his name having been struck out from this appeal, it means the appeal ceased to exist, as he cannot be substituted because of the nature of the claims at the lower Court.”PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. 

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgement): This appeal is against the decision contained in the ruling of the High Court of Osun State delivered in Suit No HOS/M/120/2010 by Honorable Justice A. A. Aderibigbe on the 26th of November, 2012.

​The Applicant was the Appellant before the lower Court and one Mr. Gbenga Ogundipe, and the second and third Respondents were the first to third respondents respectively. The Appellant commenced the action under the Fundamental Rights (Enforcement Procedure) Rules 2009 for the enforcement of his fundamental rights to personal liberty, personal dignity, fair hearing and right to property protected under Sections 34, 35, 36 and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 5, 6, 7 and 14 of African Charter on Human and People’s Rights (Ratification and Enforcement) Act. The Appellant sought for declaratory orders, order for release of documents and monetary compensation for the breaches of his rights.

​The case of the Appellant was that he had been trading with Mr. Gbenga Ogundipe since 2003 and that the practice had been that Mr. Gbenga Ogundipe would advance him various sums of money and he would supply cocoa or palm kernel equivalent of the sums of money. It was his case that he deposited the title papers of his partially completed property situate in Ifesowapo Quarters, Bibilari Avenue in Oke-Omiru, Ilesa, Osun State with Mr. Gbenga Ogundipe as collateral for the sums advanced to him. It was his case that in December, 2006, Mr. Gbenga Ogundipe advanced him sums of money totaling N2.6 Million for supply of cocoa and that he supplied cocoa worth N840,000.00 leaving a balance of N1.76 Million.

​It was the case of the Appellant that on the 11th of January, 2007 he travelled to Edo State to source for cocoa to supply and did not find at a suitable price and that on his way back he was attacked by scammers who charmed and robbed him of the sum N1,919,500.00. It was his case that he reported the incident to Mr. Gbenga Ogundipe and that he thereafter went for medical and spiritual treatment and that Mr. Gbenga Ogundipe, in company of a lawyer and uniformed policemen usually visited him at the treatment center. It was his case that he later wrote a petition to the EFCC to report the scamming incident and six persons were arrested in connection therewith and that he informed Mr. Gbenga Ogundipe of the development.

It was the case of the Appellant that on the 15th of May, 2007, Mr. Gbenga Ogundipe came to his office in the company of some persons and assaulted him for not refunding his money and he was severely beaten and that his office was ransacked and the sum of N715,500.00 given to him that morning was taken by Mr. Gbenga Ogundipe and his boys. It was his case that he was thereafter bundled into the car of Mr. Gbenga Ogundipe and driven to the office of the third Respondent in his torn clothes and locked up in a police cell without any questioning and he was not granted bail until the 17th of May, 2007 on the insistence and instruction of Mr. Gbenga Ogundipe. It was his case that upon his release, he was admitted in the hospital for treatment for the trauma he suffered from the beating and incarceration.

​It was the case of the Appellant that on the 13th of June, 2007 he was arraigned before the Senior Magistrate Court on two-count charge of fraud and stealing by the third Respondent on the instruction ofMr. Gbenga Ogundipe. It was his case that his Counsel applied for bail and the Magistrate adjourned ruling on the application till 19th of June 2007 and that while still in the Court premises, Mr. Gbenga Ogundipe approached him and said that the only way he would not end up in prison was for him to execute a prepared agreement post dated to the 31st of July 2007 conveying his partially completed property at Ifesowapo Quarters, Bibilari Avenue in Oke-Omiru, Ilesa, Osun State to him (Mr. Gbenga Ogundipe). It was his case that Mr. Gbenga Ogundipe threatened him that if he refused to sign the document he would not come out of the prison custody alive and that he was thus coerced into signing the document.

​It was the case of the Appellant that upon signing the document, the Magistrate Court reconvened on the same 13th of June, 2007 to reconsider his bail application and whereupon the Police Prosecutor informed the Court that he was withdrawing the charge as the parties had settled amicably and the charge was consequently struck out. It was his case that he thereafter commenced making strenuous efforts to raise the sum of N1.76 Million to pay to Mr. Gbenga Ogundipe in order to retrieve his property which was worth N10 Million at the time. It was his case that on the 15th of October, 2007 his wife informed him that Mr. Gbenga Ogundipe had sold the property to the second Respondent.

The records of appeal show that upon being served with the processes, Mr. Gbenga Ogundipe filed a motion dated 15th of November, 2010 before the lower Court praying that the action be dismissed for being an abuse of process in view of the fact that the Appellant had earlier commenced an action against him in Suit No HIL/46/2007 – Pastor Ajiwojuolorun Joseph Bamidele Vs Gbenga Ogundipe in the High Court, Ilesa and that the action was pending and the parties had filed and exchange pleadings. The second and third Respondents filed no processes to defend the action. The records show that the lower Court struck out the motion of Mr. Gbenga Ogundipe on the 24th of April, 2012 for want of prosecution.

​The records show that the lower Court, in view of the fact that there was no other process filed by Mr. Gbenga Ogundipe and the second and third Respondents to contest the case of the Appellant, proceed to treat the action asun defended and it entered judgment in favour of the Appellant in a ruling delivered on the 31st of May, 2012. The records show that, upon becoming aware of the judgment, Mr. Gbenga Ogundipe and the second Respondent filed a motion on notice praying for the setting aside of the judgment and the relisting of the action of the Appellant on the ground of failure of service of hearing notices. The records show that the lower Court granted the application on the 26th of November, 2012 and it set aside the judgment and relisted the matter for hearing. The Appellant was dissatisfied with the ruling of the lower Court setting aside the judgment and it caused its Counsel to file a notice of appeal dated the 27th of November, 2012 and consisting of six grounds of appeal against it.

​The records of appeal were compiled and transmitted to this Court on the 21st of January, 2013. The records show that the Appellant filed an application on the 10th of August, 2016 praying for the substitution of Mr. Gbenga Ogundipe with his wife, the first Respondent, on the ground that Mr. Gbenga Ogundipe died sometime in April, 2014 after the appeal was entered in this Court and the motion was granted on the 8th of April, 2019. When this matter came up before this Court on the 8th of February, 2022, this Court posed the following question to Counsel to the Appellant:
Notwithstanding the substitution of the deceased first Respondent by this Court, did the cause of action in this appeal survive the death of Mr. Gbenga Ogundipe, in view of the facts and circumstances of this case as canvassed before the lower Court?

Counsel to the Appellant stated that the cause of action survived the death of Mr. Gbenga Ogundipe and could be properly prosecuted against the first Respondent, his wife, that has been brought in to replace him.

It must be noted that the question of whether a cause of action survives a dead person and can proceed without him is one that touches on the jurisdiction of this Court to adjudicate on this matter and it is not a matter of procedural irregularity – AbdulRaheem Vs Olufeagba (2006) 17 NWLR (Pt 1008) 280. Thus, the fact that this Court has granted an order substituting Mr. Gbenga Ogundipe with the first Respondent did not foreclose it from making the present enquiry.

​Generally, a dead person is no longer in the eyes of the law a person. He is a person who ceased to have any legal personality from the date of his death and as such, can neither sue nor be sued personally or in representative capacity; the personality of a human being is extinguished by this death – Ezenwosu Vs Ngonadi (1988) 3 NWLR (Pt 81) 163. In Bintumi Vs Fantami (1998)13 NWLR (Pt 581) 264, this Court at page 271 paragraphs E-F made the point thus:
“An action instituted by a plaintiff is always instituted against a living or a legal person. This is because a person on death is stripped of the totality of his legal personality and being no longer a legal person, he can neither sue or be sued. In other words, where the defendant ceases to enjoy the attributes of a legal person or juristic personality, he cannot be made a defendant strict sensu”

​The law is that matters or appeal dealing with issues which are personal to a deceased person and matters in the nature of a personal action do not survive the death of a party and they usually abate on the death of the party. Actions which are predicated on personal rights or wrongs personally committed by a persondies with him. This is the essence in the common law principle which is expressed in the maxim actiopersonalismoritur cum persona, meaning a personal action does not survive death – Whyte Vs Jack (1996) 2 NWLR (Pt 431) 407, AbdulRaheem Vs Olufeagba (2006) 17 NWLR (Pt 1008) 280,Government of Cross Rivers State Vs Assam (2008) 5 NWLR (Pt 1081) 658, Iroeche Vs Izuogu (2020) 4 NWLR (Pt 1714) 211. Where, however, the action is not a personal action and can be prosecuted in the absence of the deceased party, it survives the death of the deceased party and someone else can be substituted to carry on the prosecution of the matter or appeal – Arowolo Vs Akapo (2007) All FWLR (Pt 345) 200, In Re: His Royal Highness, E. A. Saiki, The Otaru of Igarra (2012) LPELR-19791(CA), Ojo Vs Akinsanoye (2014) LPELR-22736(CA), Hadejia Vs Ladan (2017) LPELR-43368(CA)

It is trite that the question of whether or not a cause of action survives the death of a party is one of law to be determined by the nature of the action or the capacity in which the dead party sued or was sued, and it is not dependent on the say so of a party – The Incorporated Trustees of the Jamat-Ul-Muslimeen Council of Lagos Vs Oki (2010) 1 NWLR (Pt 1176) 616, Deme Vs Bule (2017) LPELR-44396(CA). The Court, in determining whether or not the death of a party will terminate the case, must consider the peculiar aspect and the nature of the claim before it – Ebongo Vs Uwemedimo (1995) 8 NWLR (Pt 411) 22.

Now, what was the nature of the claim of the Appellant in the lower Court? It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings, or the averments in the affidavit of the party in the case commenced by originating summons, together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings or averments that states the case of the party – Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227,Adama Vs K.S.H.A (2019) 16 NWLR (Pt 1699) 501, Multichoice (Nig) Ltd Vs Musical Collecting Society of Nigeria Ltd. Gte (2020) 13 NWLR (1742) 415, Anyalewechi Vs Lufthansa German Airlines (2021) LPELR-55213(CA), Ostankino Shipping Co. Ltd Vs The Owners, The MT Bata (2022) 3 NWLR (Pt 1817) 367.

​Reading through the case of the Appellant as made out on his processes before the lower Court, as summarized above, the complaints of the Appellant before the lower Court, and which led to this appeal, were for maltreatment, assault, battery and acts of de-humanization meted out to him directly and personally by Mr. Gbenga Ogundipe or by the third Respondent, at the instigation of Mr. Gbenga Ogundipe, and the personal injuries he suffered thereby and which culminated in the breach of his fundamental rights. The complaints are in respect of alleged personal wrongs committed by Mr. Gbenga Ogundipe. The position of the law is that in such situation, the complaints do not survive the death of the alleged wrongdoer. This is in consonance that with the principle of common law, as stated above, that where an action pursues interest of a personal nature or ventilates against wrongs of a personal nature, the death of the principal party extinguishes the right to sue or be sued – Oyeyemi Vs Commissioner for Local Government, Kwara State (1992)2 SCNJ 266, In Re: His Royal Highness, E. A. Saiki, The Otaru of Igarra supra.
In the Indian case of Makol Vs Sir Ganga Ram Hospital & Ors (2001) 1 CPJ 45(NC), the complainant filed a complaint against a medical doctor for medical negligence and the doctor died during the cause of the proceedings. The point was whether the legal heirs of the deceased doctor could be brought on record and it was held the complaint could not be proceeded with because the complaints leveled against the deceased could neither be rebutted nor could the deceased doctor have an opportunity to defend himself. It was noted that in a tort of medical negligence, the cause of action is personal against the person who has been negligent in performing his duties and the cause of action does not survive against the estate or legal representatives.
​This Court is not aware that this principle of common law has been eroded, amended or limited by any statute in the Laws of Ondo State and no such statute has been brought to its attention by Counsel to the Appellant. The cause of action of the Appellant against Mr. Gbenga Ogundipe did not survive his death as to legitimize the substitution of the first Respondent in his place. It is correct that there are two other Respondents in the appeal, the second and third Respondents. A read through the complaints of the Appellant in the lower Court shows that the allegations against the two other Respondents did not stand alone, but were intertwined with alleged complaints against Mr. Gbenga Ogundipe, and are thus such that cannot be resolved in the absence of Mr. Gbenga Ogundipe. Mr. Gbenga Ogundipe is the core Respondent in this appeal, and in the absence of whom all the complaints of the Appellant cannot be effectively resolved. The law is that in such a situation, the entire cause of action of the Appellant cannot survive, notwithstanding the presence of the two other Respondents. In Ani Vs Ani (2017) LPELR-44322(CA), this Court opined thus:
“A necessary party, to an appeal must be before the Court but is in clear fulfillment of one of the tenets or principles of natural justice to wit: audi alteram partem – hear the other side and which has been given constitutional force by the fair hearing provisions in Section 36 of the 1999 Constitution. The provision of Order 15 Rule 3 of the Rules of this Court (supra) upon which the objector founded the preliminary objection under consideration, eloquently provides that an appeal shall be struck off the hearing list by the Court where an appeal has been set down for hearing and the Court is or becomes aware that a necessary party to the appeal is dead … In this instant appeal, the peculiar wordings of Order 15 Rule 3 is very clear and mandatory, in that the fact of the existence of other Appellants after the death and striking out of the name of the 5th Appellant is not sufficient to save this appeal from been struck out in the absence of a necessary party such as the 5th Appellant in the appeal. And I am of the view that it has herein before been sufficiently demonstrated that the 5th Appellant is a necessary party or the most essential Appellant in the instant appeal given the case of the Appellants as set up in the statement of claim and as the instant appeal is against the judgment in favour of the Respondents, on the points of law, it raised challenging the justice ability of the Appellants’ case. The 5th Appellant struck off this appeal is a necessary party for this appeal to be competent. Therefore the fact of the death of the 5th Appellant and his name having been struck out from this appeal, it means the appeal ceased to exist, as he cannot be substituted because of the nature of the claims at the lower Court.”

The answer posed by the Court to Counsel to the Appellant is answered in the negative and the jurisdiction of this Court to entertain the appeal has been thoroughly eroded by the death of Mr. Gbenga Ogundipe. The appeal cannot thus continue to exist on the cause list of the Court for further prosecution. The appeal be and is hereby struck out. This is shall be the order of the Court.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read in draft, the lead ruling prepared by my learned brother, Habeeb Adewale O. Abiru, JCA; in this appeal.

I wholly agree with the resolution by my learned brother of the issue raised by this Court in this appeal to wit: “Notwithstanding the substitution of the deceased first Respondent by this Court, did the cause of action in this appeal survive the death of Mr. Gbenga Ogundipe, in view of the facts and circumstances of this case as canvassed before the lower Court?” The cause of action in this appeal not being one that survived the deceased Appellant, this Court lacks the jurisdiction to further entertain same.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

According, I too strike out the appeal.

YUSUF ALHAJI BASHIR, J.C.A.: I have read in draft, the ruling delivered by my Lord Habeeb Adewale O. Abiru, JCA.

​I agree that the jurisdiction of this Court to entertain the appeal has been eroded by the death of Mr. Gbenga Ogundipe, the appeal cannot therefore continue to feature on our cause list any further. Same must be and it is hereby struck out just as did my learned brother, Habeeb Adewale O. Abiru, JCA.

Appearances:

  1. J. OkolikeFor Appellant(s)

…For Respondent(s)