IDEME & ANOR v. OKIGWE & ORS
(2022)LCN/16833(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, February 16, 2022
CA/PH/917/2013(R)
Before Our Lordships:
Paul Obi Elechi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
MRS. MARTHA IDEME – APPELLANT MRS. ANITA IDEME – APPLICANT Seeking To Substitute The Appellant APPELANT(S)
And
1. CYNTHIA OKIGWE (Suing By Her Attorney Mrs. Blessing Umeodinka) 2. MR TETE INAMETI 3. THE NIGERIA POLICE FORCE (Rivers State Police Command) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE IMPORTANCE OF SUBSTITUTION OF A PARTY IN AN ACTION
It is important to relate briefly on what significance is the processes leading to substitution of a party in an action before Court, because this Court in ECOBANK NIG PLC V METU (2012) LPELR-20846(CA) states that:
“The Black’s Law Dictionary, 8th Edition, defines Substitution of a party (in an action) as “The replacement of one litigant by another because of the first litigant’s death, incompetence, transfer of interest or when the litigant is a public official..”
In the case of a dead litigant, as in the instant appeal, a dead party needs to and must be substituted where the cause of action is such that survives the death of a litigant, and in the circumstance, there is an apparent need for alteration of the parties before Court. Failure to observe this, the action before Court or the claim thereof becomes abated and/or ineffectual. See: ECOBANK NIG PLC V METU, supra.
Often times, upon substitution of a party, there is a change or transmission of interest or liability. The basic legal requirement of course, would be that such action is one in which the cause of action survives the deceased party, another person, driven by the quantum of interest or liability so transferred in the affected action, may then apply to be substituted for the deceased party. See: MBADINUJU V EZUKA (1994) LPELR-1851(SC). This is based on the elementary proposition that only a living person can approach a Court to enforce a right or seek to protect cognizable legal interest because, as was stated by Hon Justice Oputa, late Supreme Court’s Justice in CLEMENT EZENWOSU V. PETER NGONADI (1988) All NLR 254 that a dead man cannot appeal. PER KOLAWOLE, J.C.A.
THE POSITION OF LAW ON WHERE THERE ARE CONFLICTING APPLICATIONS IN COURT
It is trite law that, and I say this as a side remark that even in event or situation of conflicting applications, one seeking to terminate while the other seeks to preserve, Court as the proverbial guardian of the Constitution is enjoined to give preference to the preservation of an action before it. This is consistent with avowed judicial policy to have the rights of parties in litigation determined on its merit rather than truncate such rights by needless application of inglorious rules of technicalities. The primary role and duty of the Courts in 21st century and in a democratic setting such as our country, is to serve the interests of doing substantial justice rather than lean on niggling and often times, unhelpful technicalities. PER KOLAWOLE, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgement): By a Motion on Notice dated 28th July, 2020 and filed on 3rd August, 2020, the Applicant herein, who sought to replace the deceased Appellant in the appeal, prayed the Court for the following prayers:
1. AN ORDER of this Honourable Court, substituting the Appellant in this appeal (now deceased) with Mrs. Anita Ideme and to amend the processes accordingly.
2. Such further or other orders as the Honourable Court may deem fit to make in the circumstances.
The application was brought pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Honourable, and the grounds upon which the application was brought are as highlighted herein:
a. That the Applicant’s mother filed this appeal in this Honourable Court on 31/7/2013.
b. That the appeal was being diligently prosecuted when the Appellant (Mrs. Martha Ideme) passed on 31st day of May, 2020, thus the need to substitute the Appellant with the Applicant for a disposal of the appeal.
c. That the Applicant is the only daughter of the Appellant and has been the one assisting the Appellant in her life time in the prosecution of the appeal.
d. That the leave of this Honourable Court is required for the Applicant to substitute the Appellant.
The Application was supported by an eight paragraphed affidavit, deposed to by the Applicant personally.
The said application was not opposed, as neither the 1st Respondent, nor any of 2nd–3rd Respondents, filed any Counter Affidavit in opposition to the said Motion on Notice. However, when the application came up for hearing on 23rd September, 2021, before the Court, Counsel for the 1st Respondent, raised an objection to the said application, consequent upon which the Court directed the parties to file their respective written addresses. It was a judicial strategy the Court often adopt, prior to the coming into force of the Court of Appeal Rules, 2016 in dealing with virtually all contentious interlocutory applications as a way to save the time of the Court in having to embark on a laborious exercise of taking down in long hand, the submissions of counsel on such applications, but now under the current Court of Appeal Rules, 2021, it has become mandatory pursuant to the provision of Order 6 Rule 1 for all applications to be supported by written addresses including such processes like a Counter Affidavit that may be filed in opposition to all interlocutory applications and even ex parte motions. All of these are provided for in order to save the time of the Court and ensure proper case management in the Court of Appeal.
The 1st Respondent’s written address, titled: “ADDRESS – RE MOTION DATED 22/07/20; 3/8/2020 AND 22/01/21”, was filed in the registry of the Court on 5th October, 2021 by N. E. Ofoegbu, Esq., of counsel representing the 1st Respondent in the appeal. The 1st Respondent, in the said written address, hinted that there were three sets of motions to be heard in the application as indicated in the aforementioned caption. The learned Counsel for the 1st Respondent identified three (3) issues to be determined in the application, these are:
a. Whether the application to substitute “MRS MARTHA IDEME” with “MRS ANITA IDEME” is proper in law where both are not married to same person.
b. Whether the application is proper in law having regard Ss 117 (2) & 118 Evidence Act, 2011.
c. Whether the said substitute Mrs. Anita Ideme is not caught up by the doctrine of equity in the maxim that “he who comes to equity must come with clean hands, and must be prepared to do equity.
The Applicant on her part filed the “APPLICANT’S WRITTEN ADDRESS IN RESPONSE TO THE 1ST RESPONDENT’S ADDRESS IN OPPOSITION TO THE MOTION FOR SUBSTITUTION”, and it was dated and filed on 18th October, 2021. The learned counsel on record for the 1st Respondent, Stanley Princewill, Esq., adopted the issues for determination as set down by the 1st Respondent.
The 1st Respondent thereafter filed a “REPLY ON POINTS OF LAW”, dated and filed on 29th October, 2021 in the appeal.
The argument of learned Counsel on issue 1 was premised on the identity of the Applicant herein, and it was argued that there was one “Onyinyechi Ideme” who is said to be the “only daughter” of the late Appellant, which is in contrast with the same claim from the Applicant, who too deposed to the fact that she was the “only daughter” of the late Appellant in the appeal. Counsel raised the poser thus:
i. Who is the said Onyinyechi Ideme? And;
ii. Who is the Applicant herein, whether she is married to the Appellant’s husband as well.
Counsel argued that the identity of the Applicant is expressly established. Learned Counsel submitted that the Applicant could not be a “good substitute” for the late Appellant, counsel and argued that the Applicant has failed to state the relationship between the Anita Ideme, seeking to substitute the late Appellant and the said Mrs. Martha Ideme, deceased.
Learned Counsel argued on issue 2 that the alteration made in paragraph 1 of the affidavit in support of the motion offends the provision of Sections 117 and 118 of the Evidence Act, and he thereafter submitted that the affidavit be discountenanced as a whole.
On issue 3, Counsel pointed out what was perceived as conflicting averment in the depositions of the applicant in the affidavit in support of the motion. Counsel contended that the Applicant has the sole aim of reaping unwholesomely from the property the subject matter of the litigation. It was submitted that the 1st Respondent will suffer a miscarriage of justice if the Applicant is allowed to substitute the late Appellant. The 1st Respondent’s Counsel cited the decision in FASESIN V OYERINDE (1997) 11 NWLR (Pt 530) 552 AT 561 to submit that the Applicant ought not be joined as substitute as her hands “are soiled”, for being the one said to be “assisting the late Appellant from the High Court to this Court”. The Court was urged to dismiss the application for substitution filed by the Applicant and allow the application of dismissal of the main appeal filed by the 1st Respondent.
In response to the foregoing, the Applicant stated that the 1st Respondent failed to file a Counter Affidavit to the motion on notice filed by the Applicant, and the learned counsel submitted vide decision in PETER V STATE (2020) LPELR-50476(CA) that the Applicant’s averments therein were deemed admitted by the 1st Respondent.
The Applicant’s Counsel asserted that the Court is so empowered to allow and grant an application, as in the instance in order to substitute a deceased party with another person. We were urged to allow the instant application. The Applicant’s Counsel relied on decisions in RHEIN MASS UND SEE & ORS V RIVWAY LINES LTD (1998) LPELR-2948(SC); YAKUBU & ORS V BUKOLA & ORS (2014) LPELR-22769(CA); HADEJIA V LADAN & ORS (2017) LPELR-43368(CA) and AROWOLO V AKAPO (2006) 18 NWLR 9Pt 1010) 94 SC, and submitted that the cause of action in the suit, being that of a right of possession in a subject property, survives the Appellant and thereby ought to be sustained by the daughter.
The learned Applicant’s Counsel argued that the Applicant had shown in her affidavit in support of the application, sufficient reasons to succeed the late Appellant in the prosecution of the instant appeal. The provision of Order 15 Rule 2, was cited and relied upon while submitting that the Court is imbued with sufficient authority and power to grant the application as filed.
On the issue of what was termed an alteration on the face of the affidavit in support of the application, whether same offends the provision of Evidence Act at its Sections 117(2) &118, Counsel harped on the duty of Court to do substantial justice in place of technicality, while relying on Section 113 of the Evidence Act, supra, Counsel submitted that no form of miscarriage of justice was occasioned neither was the 1st Respondent confused by the said alteration. The learned Counsel further cited decision in OGBA V STATE (1992) LPELR-2273(SC) to argue that it will be a substantial justice for the Applicant to be allowed to prosecute the appeal which was commenced by the deceased Appellant to its conclusion. We were urged Court to discountenance the argument of the 1st Respondent in this regard.
On the requirement of the Applicant to do equity, Counsel argued that there was no conceivable way in which the Applicant has offended the rule of equity. Learned Counsel enjoins the 1st Respondent to restrict his submissions to the instant application rather than foraying into extraneous issues. It was argued that substitution of a party is found on law rather than in equity and cited the provision of Order 15 Rule 2 of the Court of Appeal Rules, 2016.
Whether the Applicant herein is the same person known as “Onyinyechi”, the Applicant’s counsel argued that it amounts to giving evidence under the guise of writing an address and it was submitted based on the decision in AINA & ORS V DADA & ANOR (2017) LPELR-42553(CA) that address of counsel cannot take the place of legal proof. Counsel further submitted that sufficient interest is the only criteria in substituting a party rather than affinity and cited the decision in SHENSHUI CONSTRUCTION CO NIG LTD & ANOR V INTERCONTINENTAL BANK PLC & ORS supra in support of the assertion.
The Applicant’s Counsel cited decisions in HONDA PLACE LTD V GLOBE MOTORS HOLDING NIG LTD (2005) LPELR-3180(SC); YEMOS NIG LTD & ANOR V UNITY BANK (2016) LPELR-41211(CA); AHMED V GOV OF GOMBE STATE & ORS (2021) LPELR-53367(CA) and OWURU V ADIGWU (2017) LPELR-46763(SC) and submitted that the failure of the 1st Respondent to file a counter affidavit to the averments deposed in the affidavit in support of the Applicant’s application, is fatal to her case, and the learned Counsel affirmed that the averments in the said affidavit in support remain uncontroverted and unchallenged. The provision of Section 123 of the Evidence Act and decisions in WATHARDA V ULARAMU (2014) LPELR-24175(CA); SKYMIT MOTORS LTD V UBA PLC (2020) LPELR-52457(SC); CHUKWU V STATE (2012) LPELR-9829(SC); LIPEDE & ORS V SHONEKAN & ANOR (1995) LPELR-1786(SC) were relied upon to argue that the Court ought to act and arrive at its decision based on the uncontroverted and unchallenged evidence of the Applicant. The Court was urged to discountenance the argument contained in the address of learned counsel to the 1st Respondent and to grant the instant application.
In the reply on points of law, dated and filed on 28th October, 2021, learned Counsel contended that it is permitted to respond to an affidavit in the way it was done in this application. On the identity of the Applicant seeking to substitute the late Appellant, counsel stated that the law requires adequate identification of the person seeking the substitution.
The 1st Respondent’s Counsel argued that since the substitution is to take over both “assets and liability” of the deceased party, the relevant law ought to be “Administration of Estate Law of Rivers State”. We were urged to give effect to the rule in GRASEG LTD V RTTBC 2012 13 NWLR Pt 1316 168; AJOMALE V YADUAT (No 2) (1991) 5 NWLR (Pt 191) 226 and MATINJA V MILAD PLATEAU STATE (1998) 9 NWLR (Pt 567) 694, to the effect that adjudged trespasser is not entitled to equitable relief of stay of execution and that the case must come to an end.
In order to resolve the contention of parties in the instant application, regards ought to be had to the narrow question of law involved, and this in my respectful view, border on substitution of a deceased party in the instant appeal. As gleaned from the record before the Court, the appeal was filed in 2013 by the Applicant’s deceased mother who prosecuted same till her demise in 2020, and the instant application seeks from the Court, for an order to substitute the Applicant for the late Appellant on the face of the record.
It is important to relate briefly on what significance is the processes leading to substitution of a party in an action before Court, because this Court in ECOBANK NIG PLC V METU (2012) LPELR-20846(CA) states that:
“The Black’s Law Dictionary, 8th Edition, defines Substitution of a party (in an action) as “The replacement of one litigant by another because of the first litigant’s death, incompetence, transfer of interest or when the litigant is a public official..”
In the case of a dead litigant, as in the instant appeal, a dead party needs to and must be substituted where the cause of action is such that survives the death of a litigant, and in the circumstance, there is an apparent need for alteration of the parties before Court. Failure to observe this, the action before Court or the claim thereof becomes abated and/or ineffectual. See: ECOBANK NIG PLC V METU, supra.
Often times, upon substitution of a party, there is a change or transmission of interest or liability. The basic legal requirement of course, would be that such action is one in which the cause of action survives the deceased party, another person, driven by the quantum of interest or liability so transferred in the affected action, may then apply to be substituted for the deceased party. See: MBADINUJU V EZUKA (1994) LPELR-1851(SC). This is based on the elementary proposition that only a living person can approach a Court to enforce a right or seek to protect cognizable legal interest because, as was stated by Hon Justice Oputa, late Supreme Court’s Justice in CLEMENT EZENWOSU V. PETER NGONADI (1988) All NLR 254 that a dead man cannot appeal.
The Court, in deserving cases, and in the undoubted exercise of its discretionary powers based on the facts and material produced before it, may order that such person, with sufficient interest, which prima facie is demonstrated in the affidavit deposition filed to support the application for substitution, may be joined in substitution for a deceased party in an action or appeal pending before that Court. This is based on the principle that rights of parties be adjudged on its merit once a cause of action survives the party in litigation.
I have carefully perused the motion on notice of 3rd August, 2020 together with the affidavit in its support as filed by the Applicant herein, I find some of the depositions apt in the circumstance, and I hereunder reproduced same:
1. That my mother is (sic) the Appellant in this suit and filed the appeal sometime on 2/7/2013 and has being (been) prosecuting the appeal until her death on 31/5/2020.
2. That I am the only daughter of the said Appellant assisting the Appellant in the prosecution of this case from the High Court of Rivers State up to this Honourable Court and thus I am very conversant of this appeal.
3. That I have been informed by Stanley Princewill, Esq., counsel to the Appellant in his office at BM Wifa & Co, 3, Azikiwe Road, Port Harcourt, in one of my numerous meetings with him and I verily believe him to be stating the truth, that it is necessary to bring this motion to substitute the Appellant in this appeal (Mrs. Martha Ideme) with Mrs Anita Ideme (Applicant herein).
4. That this appeal arose from a suit that is an action in rem which survives the Appellant, …
5. That it just and equitable to grant this application as this will, to a large extent, avoid further substitution.
6. That I am willing and prepared to prosecute this appeal to its conclusion and the Respondents will not be prejudiced by the grant of this application.
7. That the said Appellant has other children but none of them is interested in prosecuting this appeal.
8. …
As I have earlier stated, the keyword is the existence of sufficient interest, and the Court ought not to clog or prevent gestures which will yield a just determination of the action before it as it is not the function of the Court to embark on an investigation of the issues of facts raised by the 1st Respondent who has not filed a counter affidavit in opposition to the instant Motion on Notice. Ancillary to this, is the fact that the application for substitution, on a broad reading of the provisions of Order 15 Rules 1, 2, 3 and 4 of the Court of Appeal Rules, 2021 did not expressly or impliedly restrict the right to make the application only to the family or relation of the deceased, but could have been made even by the 1st Respondent if he or she knew the actual person or persons that may be concerned as one having sufficient in the subject matter of the action that survives the original Plaintiff or Defendant, and as in this Court, the Appellant or the Respondent. Let me quickly reproduce the said provisions and it read thus:
1) “It shall be the duty of Counsel representing a party to an appeal to give immediate notice of the death of that party to the Registrar of the lower Court or to the Registrar of the Court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.
2) 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 lower Court or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted. (underline is mine for emphasis).
3) 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, the appeal shall be struck off the hearing list unless an application for substitution is made.
4) Where the name of a Party to an appeal changes during the pendency of the appeal, the party or the Appellant shall apply to the Court, in the manner prescribed in these Rules, for an order of substitution.”
I have taken quality time and efforts to comb through the argument of the parties in this application, and I have found that the suit as commenced in the lower Court, decision of which is being challenged on appeal, is a dispute involving interest in the subject property situate at Road 3 Flat 2B, Federal Low Cost Housing Estate, Woji, Obio/Akpor Local Government Area, Rivers State, which qualifies it as an action in rem.
I am guided by the decision of this Court, also cited by Counsel for the Applicant, in HADEJIA V LADAN & ORS, supra, wherein it was stated thus:
“It is settled law that an action pertaining to ownership of land and breach of right of possession of land is not a personal action as it concerns an injury to the estate of the deceased and it thus attaches to or enures to the estate of a deceased… Such a cause of action therefore survives his death.”
I found that the cause of action herein, survives the deceased Appellant, and in my opinion, the Applicant was able to demonstrate sufficient interest in the appeal, in the sworn affidavit already culled out herein. I so hold.
I am also in agreement with learned counsel for the Applicant, that the failure of the 1st Respondent to file a counter affidavit to the application of the Applicant, especially on the issues of facts on which this Court, is impliedly being invited to conduct a judicial investigation which has been decided by the apex Court not to be the function of the Court as to the true identity of the Applicant in relation to the deceased Appellant is fatal to the 1st Respondent’s contention in this application. The unchallenged averments of facts in the affidavit depositions in support of the motion paper are without much ado, deemed admitted. The argument of learned counsel for the 1st Respondent in that regard is hereby discountenanced because, it was nothing but an invitation to act without due regard to the points I have made at great length.
It is trite law that, and I say this as a side remark that even in event or situation of conflicting applications, one seeking to terminate while the other seeks to preserve, Court as the proverbial guardian of the Constitution is enjoined to give preference to the preservation of an action before it. This is consistent with avowed judicial policy to have the rights of parties in litigation determined on its merit rather than truncate such rights by needless application of inglorious rules of technicalities. The primary role and duty of the Courts in 21st century and in a democratic setting such as our country, is to serve the interests of doing substantial justice rather than lean on niggling and often times, unhelpful technicalities.
In view of the foregoing, the prayer sought by the Applicant in the motion paper is hereby granted. It is ordered that the Applicant be substituted as the replacement for the deceased Appellant in the appeal.
The application is allowed and it is hereby ordered that further Court’s processes shall henceforth reflect the incident of the order of substitution herein made upon the success of the Applicant’s Motion on Notice which is granted for the reasons given in this ruling. There shall be no order for cost and both parties shall bear their respective costs of this application.
The application succeeds as prayed.
PAUL OBI ELECHI, J.C.A.: I read in draft, the ruling in this appeal just delivered by my learned brother Gabriel Omoniyi Kolawole, JCA.
I agree with him that the application is hereby granted.
Also, I abide by the order of no cost and that parties shall bear their respective costs in this application.
Application granted.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I read in draft, the lead ruling just delivered by my learned brother, Gabriel O. Kolawole, JCA. I entirely agreed with his reasoning and conclusion. I have nothing tangible to add. The Application succeeds.
Appearances:
Stanley Princewill, Esq, with him, D. N. Adamgbo, Esq, and G. D. Inyorne, Esq, For Appellant(s)
N. E. Ofoegbu, Esq, – for 1st Respondent. For Respondent(s)
