ELETU & ORS v. OGUNLANA (2022)

ELETU & ORS v. OGUNLANA

(2022)LCN/16468(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, January 26, 2022

CA/L/06/1998(R)

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Between

1. IMAM LATEEF ELETU 2. YAKUBU ELETU 3. ABDUL RAFIU ELETU 4. LIYADU ELETU 5. MURTALABI ELETU 6. MOSHOOD MURTALA ELETU (For Themselves And On Behalf Of The Eletu Family Of Awoyaya Village Ibeju Local Government Area, Lagos State) APPELANT(S)

And

TESLIM ALLI OGUNLANA RESPONDENT(S)

RATIO:

A PERSONAL RIGHT OF ACTION DIES WITH THE PERSON

THE ACTION FORMING THE BASIS OF THE SUBTANTIVE APPEAL

Aside the fact that the respondent is the personal representative of the deceased respondent, he has further described himself as Bale of Awoyaya, with the implication being that the respondent is a person interested in the subject matter before this honourable Court, and will be certainly affected by the decision of this Court.
The action forming the basis of the substantive appeal is not in the class of a personal action that abates with the death of the named parties. In Akumoju vs. Mosadolarun (1990) 9 NWLR (supra), the Court held that though personal rights of action against a party will ordinarily abate upon the death of such a party unless appropriate steps are taken to substitute a living person for the deceased, there are however exceptions, and situations whereby such right of action can survive the deceased party. ABDULLAHI MAHMUD BAYERO, J.C.A.

A PARTY TO A SUIT HAS AN UNFETTERD RIGHT TO APPLY TO THI S COURT TO SUBSTITUTE A NEW PARTY FOR A DECEASED PARTY

Clearly and on the premise of the judicial authority cited above and the rules of this Court, it is beyond peradventure that a party to a suit has an unfettered right to apply to this Court to substitute a new party for a deceased party. In this instant case, there is a surviving appellant, and the law is settled that a surviving party to a suit can apply to the Court to substitute the other deceased parties. See Idris v. ANPP (2008) 8 NWLR (Pt. 1088)1/120. As can be gleaned from the reliefs on the motion paper there are two crucial limbs to the applicant’s application. Applicant’s first relief seeks an order of this Court granting them leave to substitute the names of the 1st to 5th appellants, all of whom are now deceased, whilst the second relief seeks to substitute the name of the sole respondent in this appeal, now deceased, with his personal representative. ABDULLAHI MAHMUD BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgement): The Motion on Notice filed on 18/09/2015 prays for an order granting leave to the applicants to substitute Imam Murtala Eletu, Imam Lateef Eletu, Yakubu Eletu, Abdul Rafiu Eletu, Liyadi Eletu (now deceased) with Alhaji Tawaliu Eletu, Chief Isiaka Babatunde Eletu, Mr. Anofi Musediku Eletu, Mr. Ayinde Eletu and Mr. Waheed Eletu as the 1st – 5th Appellants in this Appeal, an order granting leave to the Applicants to substitute Taslim Alli Balogun (now deceased) with Saliu Ogunlana, the personal representative of the deceased Taslim Alli Balogun as the Respondent in this Appeal. The grounds for the application are:-
1) The 1st – 5th Appellants in this appeal are deceased.
2) The 6th Appellant is still alive
3) The Eletu family of Awoyaya Village, Ibeju Local Government, Lagos State is still interested in prosecuting in this appeal and it has nominated (Alhaji Tawaliu Eletu, Chief Isiyaka Babatunde Eletu, Mr. Anafi Musediku Eletu, Mr. Ayinde Eletu and Mr. Waheed Eletu) who are principal members of the family to be substituted for Imam Murtala Eletu, Imam Lateef Eletu, Yakubu Eletu, Abdul Rafiu Eletu and Liyadu Eletu (now deceased).
4) The Respondent hererin, Teslim Alli Ogunlana, is now deceased and Saliu Ogunlana is his personal representative.

The motion is supported by an accompanying affidavit in support of thirteen (13) Paragraphs deposed to by one Tolu Adetomiwa on behalf of the Applicant with one annexure Exhibit A. The Appellant contended in the course of moving the motion that the purport of the instant application by the applicant is to substitute the 1st to 5th Appellants as well as the named respondent in this appeal, all of whom are now deceased, with the appropriate parties allowable in law to be so substituted. That the law is trite on the right and powers of an appellant or any party to an action to substitute the named parties before the Court in appropriate circumstances.

That the right of action can survive the death of a person and others who have an interest in the subject matter can continue to prosecute the action in the stead of the deceased party – Incorporated Trustees of Jamat UI Muslim Council of Lagos AKA Lagos Central Mosque v. Hon. Chief T.A. Bankole Oki (SAN)(2010)1 NWLR (Pt. 1176) 616 at 624.

According to Counsel, the above principle of law is also well enshrined in the Rules of this Court. In particular, Order 15 Rule 2 of the Court of Appeal Rules 2011 provides thus:
“Where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 10, be made in that behalf to the Court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.”

That based on the premise of the judicial authority cited above and the Rules of this Court, it is beyond peradventure that a party to a suit has an unfettered right to apply to this Court to substitute a new party for a deceased party. That there is a surviving appellant, and the law is settled that a surviving party to a suit can apply to the Court to substitute the other deceased parties – Idris v. ANPP (2008)8NWLR(Pt.1088)1/120.

According to Counsel, this action was commenced by the appellants at the lower Court in a representative capacity, viz; “For themselves and on behalf of the Eletu Family of Awoyaya Village Ibeju Local Government Area, Lagos State.” In other words, the suit from which this appeal emanates is a representative action. The right to sue in a representative action is not exclusive to the named parties in the processes before the Court, it extends and inures to all persons who fall into the description of the named class on whose behalf the suit is instituted by the named parties – Ladejobi v. Oguntayo (2004) 18NWLR (Pt. 904) 135.That any member of the named class is entitled by law to opt in or opt out of the class.

That while it is true that a representative action is maintainable and will subsist despite the death of some of the parties, however, unless and until a living person has been substituted for the deceased party(s) the Court cannot continue to preside over such an action.

That as deposed in the affidavit in support of this application, the 1st to 5th appellants, along with the 6th appellant (who is still alive) instituted this appeal in a representative capacity, are now deceased. That the Applicant has deposed in the affidavit in support of this application that the said Eletu Family of Awoyaya village whom they represent in this appeal is still desirous of prosecuting this appeal and has thus nominated the persons so stated in the affidavit to be substituted for the deceased appellants.
Whether the action can survive the sole Respondent (now deceased).

Learned Counsel further submitted that the objection to this application, as evinced in the counter-affidavit filed by the respondent, is that Chief Saliu Ogunlana only represents the personal estate of the deceased and that the issue of office of Bale of Awoyaya is a Chieftaincy dispute affecting the Awoyaya village. He contends further that the office of Bale of Awoyaya is not part of the personal property of the respondent (deceased) to warrant the substitution being sought by the applicant – Paragraph 4(d) of the counter-affidavit.

That the lower Court in its judgment appearing at page 214 of the record dismissed the applicant’s suit and held that it is not only the Eletu family of Awoyaya that can select and appoint one of themselves as the Bale of Awoyaya Village.

That by virtue of the reliefs of the applicant and the decision of the lower Court, the appeal before this Court touches directly on the stool of the Bale of Awoyaya Village; and that the applicant is acting on behalf of the named class in the substantive appeal before this Court seeking to be declared as the rightful heir to the stool of the Bale of Awoyaya – paragraph 1 of Exhibit A attached to the affidavit in support of this application, wherein the respondent described himself as “… I am the Traditional Ruler, Baale of Awoyaya Ogunlana in Awoyaya Town in Ibeju Lekki Local Government Council Area of Lagos State.” Further at paragraph 4 of the said exhibit, he stated thus:
“That presently I occupy the position of Bale of Awoyaya Ogunlana….”

That it is against the background of the deposition in paragraph 1 of the Exhibit A juxtaposed with the reliefs of the applicant at the lower Court and the substantive appeal before this Court that makes the Respondent a necessary party in this appeal having described himself as Bale of Awoyaya. According to Counsel, apart from the fact that the Respondent is the personal representative of the deceased respondent, he has further described himself as Bale of Awoyaya, with the implication that the respondent is a person interested in the subject matter before this honourable Court, and will be certainly affected by the decision of this Court.

That the action forming the basis of the substantive appeal is not in the class of a personal action that abates with the death of the named parties – Akumoju vs. Mosadolarun (Supra) and Ojo v. Akinsanoye(2014) LPELR – 22736 (CA).

That a personal right of action dies with the person, has been radically altered by the provisions of statute in Nigeria and that this position was succinctly captured by this honourable Court in Hon. Justice Manuwa vs. National Judicial Council & 5 Ors. Appeal No: CA/L/205/2002 (2011) (unreported), thus:
“I agree with the Respondent’s counsel that under the common law, a personal right of action dies with the person. This was clearly stated by Nnaemeka-Agu JSC In Chief Joseph Odetoye Oyeyemi vs. Commissioner of Local Government Kwara State & 3 Ors (1992) 2 NWLR (Pt. 226) 661 at 675 where his lordship said thus “A personal right of action dies with the person. This is expressed in the latin maxim action personalis Moritur cum Persona. In other words, an action based on the personal rights of a deceased person dies with the person.” See also Whyte vs. Jack (1996) 2 NWLR (Pt.431) 407 at 422. However, in the instant case it does seem that statute has intervened. A community reading S.15 of the Administration of Estates Law Laws of Lagos State clearly shows that the common law position is no longer applicable to Lagos. It now determines the survival of a cause of action on the death of a person in Lagos State S.15(1) of the Administration of Estates Law Laws of Lagos State 2003 is in parimateria with S.15(1) of the Administration of Estate Law Cap 2 Laws of Bendel State 1976 which was interpreted by the Supreme Court in Ogiugo vs. Ogiugo (1999) 14NWLR (Pt.638) 283 and determined that a cause of action survives a deceased person either for or against him for the benefit of his estate excepting where the cause of action is for deformation (sic), seduction, or inducing one spouse to leave or remain a part from other or to claim for damages on the ground of adultery.”

That the depositions of Chief Saliu Ogunlana are clear and conclusive to the effect that he is the next of kin and personal representative of the Respondent(now deceased) and that the Applicant is clearly fortified in law and logic to apply to this Court to substitute the Respondent (deceased) with Chief Saliu Ogunlana, who has admitted that he is the next of kin and personal representative of the Respondent.

The purport of the instant application by the applicants is to substitute the 1st to 5th Appellants as well as the named respondent in this appeal, all of whom are now deceased, with the appropriate parties allowable in law to be so substituted. The law is trite on the right and powers of an appellant or any party to an action to substitute the named parties before the Court in appropriate circumstances. No doubt, the right of action can survive the death of a person and others who have an interest in the subject matter can continue to prosecute the action in the stead of the deceased party. See Incorporated Trustees of Jamat UI Muslim Council of Lagos AKA Lagos Central Mosque vs. Hon. Chief T.A. Bankole Oki (SAN) (2010)1 NWLR (Pt. 1176) 616 at 624.
The above principle of law is also well enshrined in the rules of this Court. In particular, Order 15 Rule 2 of the Court of Appeal Rules 2021provides thus:
“Where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 11, be made in that behalf to the Court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.”
Clearly and on the premise of the judicial authority cited above and the rules of this Court, it is beyond peradventure that a party to a suit has an unfettered right to apply to this Court to substitute a new party for a deceased party. In this instant case, there is a surviving appellant, and the law is settled that a surviving party to a suit can apply to the Court to substitute the other deceased parties. See Idris v. ANPP (2008) 8 NWLR (Pt. 1088)1/120. As can be gleaned from the reliefs on the motion paper there are two crucial limbs to the applicant’s application. Applicant’s first relief seeks an order of this Court granting them leave to substitute the names of the 1st to 5th appellants, all of whom are now deceased, whilst the second relief seeks to substitute the name of the sole respondent in this appeal, now deceased, with his personal representative.
Whether the 1st-5th Appellants (now deceased) can be substituted.

As borne out of the records before this Honourable Court, this action was commenced by the appellants at the lower Court in a representative capacity, viz; “For themselves and on behalf of the Eletu Family of Awoyaya Village Ibeju Local Government Area, Lagos State.” In other words, the suit from which this appeal emanates is a representative action. The right to sue in a representative action is not exclusive to the named parties in the processes before the Court, it extends and enures to all persons who fall into the description of the named class on whose behalf the suit is instituted by the named parties – Ladejobivs. Oguntayo (2004) 18 NWLR (Pt. 904) 135. More so, any member of the named class is entitled by law to opt in or opt out of the class. The decisions of superior Courts in Nigeria have crystallised on the legal proposition that when an action is instituted in a representative capacity, such an action is not only by or against the named plaintiffs, but is also by and against those named parties represented who are not stated nomine -Re: Otuedon (1995) 4 NWLR (Pt. 392) 655.

While it is true that a representative action is maintainable and will subsist despite the death of some of the parties, however, unless and until a living person has been substituted for the deceased party(s), the Court cannot continue to preside over such an action. Akumoju vs. Mosadolarun (1990) 9 NWLR (214) 236.

In the instant case and as deposed in the affidavit in support of this application, the 1st to 5th appellants, along with the 6th appellant (who is still alive) instituted this appeal in are representative capacity, are now deceased. What is more? Applicant has deposed in the affidavit in support of this application that the said Eletu Family of Awoyaya village whom they represent in this appeal is still desirous of prosecuting this appeal and has thus nominated the persons so stated in the affidavit to be substituted for the deceased appellants.

Whether the action can survive the sole Respondent (now deceased).

The crux of the objection to this application, as evinced in the counter-affidavit filed by the respondent, is that Chief Saliu Ogunlana only represents the personal estate of the deceased and that the issue of office of Bale of Awoyaya is a Chieftaincy dispute affecting the Awoyaya village. He contends further that the office of Bale of Awoyaya is not part of the personal property of the respondent (deceased) to warrant the substitution being sought by the applicant. See Paragraph 4(d) of the counter-affidavit.
The first question to be addressed is whether this action is one that can survive the sole respondent in this appeal? In answering this question one must consider the nature of the applicant’s action and in particular, the applicant’s reliefs at the lower Court.
The record of appeal specifically the Further Amended Statement of Claim filed by the applicant at the lower Court for the reliefs of the applicant at page 171 of the record, the applicant stated thus:
“The Plaintiffs seek the following reliefs against the defendant:
A. A declaration that only the Eletu Family of Awoyaya Village can select and appoint one of themselves as the Bale of Awoyaya Village.
B. A perpetual injunction restraining the Defendant from calling or parading himself as the Bale of Awoyaya Village.”
The lower Court in its judgment appearing at page 214 of the record dismissed the applicant’s suit and held that it is not only the Eletu family of Awoyaya that can select and appoint one of themselves as the Bale of Awoyaya Village.
By virtue of the reliefs of the applicant and the decision of the lower Court, the appeal before this Court touches directly on the stool of the Bale of Awoyaya Village. The applicant is acting on behalf of the named class in the substantive appeal before this Court seeking to be declared as the rightful heir to the stool of the Bale of Awoyaya.
Paragraph 1 of Exhibit A attached to the affidavit in support of this application, wherein the respondent described himself as “I am the Traditional Ruler, Bale of Awoyaya Ogunlana in Awoyaya Town in Ibeju Lekki Local Government Council Area of Lagos State.” Further at Paragraph 4 of the said exhibit, he stated thus:
“That presently I occupy the position of Bale of Awoyaya Ogunlana.”
Aside the fact that the respondent is the personal representative of the deceased respondent, he has further described himself as Bale of Awoyaya, with the implication being that the respondent is a person interested in the subject matter before this honourable Court, and will be certainly affected by the decision of this Court.
The action forming the basis of the substantive appeal is not in the class of a personal action that abates with the death of the named parties. In Akumoju vs. Mosadolarun (1990) 9 NWLR (supra), the Court held that though personal rights of action against a party will ordinarily abate upon the death of such a party unless appropriate steps are taken to substitute a living person for the deceased, there are however exceptions, and situations whereby such right of action can survive the deceased party. In Ojo vs. Akinsanoye (2014) LPELR – 22736 (CA), this Court expressly stated actions of a strictly personal nature that must abate upon the death of a deceased person thus:
“There are actions that will automatically abate if the death of a party is occasioned, these are actions that are strictly personal in nature such as:-
(i) Action to enforce a contract of personal service;
(ii) Action for breach of promise to money, or seduction;
(iii) Action for defamation;
(iv) Action for enticements and harbouring.

Where the cause of action is not personal to the plaintiff/defendant as in this instant case, then such action can survive the deceased party. The only caveat to this is that the appropriate steps are taken to substitute a living person for the deceased.”
The position that the personal right of action dies with the person, has been radically altered by the decision of this Court. The position of the law was succinctly captured by this Honourable Court in Hon. Justice Manuwa vs. National Judicial Council & 5 Ors Appeal No: CA/L/205/2002″ (2011) (unreported), thus:
“1 agree with respondent’s counsel that under the common law, a personal right of action dies with the person. This was clearly stated by Nnaemeka-Agu JSC In Chief Joseph Odetoye Oyeyemi vs. Commissioner of Local Government Kwara State & 3 Ors (1992)2 NWLR (Pt.226) 661 at 675 where his lordship said thus “A personal right of action dies with the person. In other words, an action based on the personal rights of a deceased person dies with the person.” See also Whyte vs. Jack (1996) 2 NWLR (Pt. 431) 407 at 422. However in the instant case it does seem that statute has intervened. A community reading of S.15 of the Administration of Estates Law Laws of Lagos State clearly shows that the common law position is no longer applicable to Lagos. It now determines the survival of a cause of action on the death of a person in Lagos State. S.15(1) of the Administration of Estates Law Laws of Lagos State 2003 is in parimateria with S.15(1) of the Administration of Estate Law Cap 2 Laws of Bendel State 1976 which was interpreted by the Supreme Court in Ogiugo vs. Ogiugo (1999) 14 NWLR (Pt.638) 283 and determined that a cause of action survives a deceased person either for or against him for the benefit of his estate excepting where the cause of action is for defamation(sic), seduction, or inducing gone spouse to leave or remain a part from other or to claim for damages on the ground of adultery.”
The Applicant’s ground for the choice of Chief Saliu Ogunlana is anchored on his affidavit (Exhibit A), sworn to on 3rd day of March, 2015 where he stated clearly that he is the personal representative of the Estate of the Respondent (now deceased). At paragraphs 1 to 4 of the said Exhibit A, Chief Saliu Ogunlana deposed as follows:
1. “That I am the Traditional Ruler, Bale of Awoyaya Ogunlana in Awoyaya Town in Ibeju Lekki Local Government Council Area of Lagos State.”
2. “That the Respondent in this appeal was my late uncle who died on 20th March, 2007. I am his next of kin and the personal representative of his Estate. Photocopy of the death certificate is herewith attached as Exhibit AA1.”
3. “That the fact herein is a chieftaincy dispute of appointment of Baleship of Awoyaya Town.”
4. “That presently I occupy the position of Bale of Awoyaya Ogunlana, the position having been so approved by the chieftaincy committee of Ibeju Lekki Local Government Council Area of Lagos under the chairmanship of His Royal Majesty obaRafiu Olusegun Bamidele Salami at the committee meeting held on 18th August, 2009.”
The depositions of Chief Saliu Ogunlana are clear and conclusive to the effect that he is the next of kin and personal representative of the Respondent (now deceased). Arising from the foregoing, the Applicant is clearly fortified in law to apply to this Court to substitute the Respondent (deceased) with Chief Saliu Ogunlana, who has admitted that he is the next of kin and personal representative of the Respondent. The issues in this appeal cannot be resolved without the presence of Chief Saliu Ogunlana, and he is therefore the appropriate person to be substituted for the Respondent (deceased) as he has legally stepped into the shoes of Teslim Alii Ogulana (now deceased). The application is therefore granted as follows:-
1) Leave is granted to the Applicants to substitute Imam Murtala Eletu, Imam Lateef Eletu, Yakubu Eletu, Abdul Rafiu Eletu, Liyadi Eletu (now deceased) with Alhaji Tawaliu Eletu. Chief Isiaka Babatunde Eletu, Mr. Anofi Musediku Eletu, Mr. Ayinde Eletu and Mr. Waheed Eletu as the 1st – 5th Appellants in this appeal.
2) Leave is granted to the Applicants to substitute Teslim Alli Balogun (now deceased) with Saliu Ogunlana, the personal representative of the deceased Teslim Alli Balogun, as the Respondent in this appeal.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Abdullahi Mahmud Bayero, JCA, made available to me a draft copy of the ruling just delivered, granting the application of the Appellants/Applicants. I agree that the application has merit and deserves to be granted. I abide by the orders made.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: The draft of the ruling prepared by my learned brother, Abdullahi Mahmud Bayero, JCA, and just delivered, was made available to me before now. I agree with the lead ruling that the application of the 6th Appellant for substitution of the 1st – 5th deceased Appellants and the sole deceased Respondent has merit and should be granted.

Having admitted in his counter-affidavit that apart from being the personal representative of the deceased Respondent, he is also the Baale of Awoyaya Ogunlana in Awoyaya Town of Ibeju Local Government, the Respondent to this application is a proper person to be joined as a party in this appeal as the outcome of the appeal will definitely affect him. It is for this reason and the more elaborate reasons in the lead ruling that I also grant the application as prayed. I abide by the ruling.

Appearances:

Shola Bojuwoye with him, Omolola Faleye For Appellant(s)

…For Respondent(s)