IN RE: MR. GODKNOWS AMADI v. DR. PRINCEWILL CHIKE & ORS
(2022)LCN/16856(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, February 16, 2022
CA/PH/270/2010(R)
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
CHIEF EMMANUEL NNANTA CHINDA (For Himself And As Representing The Chokaa Family Eligbam, Rumueme, Port Harcourt) MR. GODKNOWS AMADI – APPLICANT/ PARTY SEEKING TO BE SUBSTITUTED FOR THE APPELLANT) APPELANT(S)
And
1. DR. PRINCEWILL CHIKE 2. MR. KINGSLEY CHIKE 3. MR. BUDKA CHIKE 4. MR. NYESOM ETEI 5. MR. VICTOR NJOBUNWU MACAULAY (Jointly And Severally) RESPONDENT(S)
RATIO
WHETHER OR NOT ALL PROCEDURES LAID DOWN BY A STATUTE MUST BE FOLLOWED
Where a statute lays down a certain procedure that ought to be followed before an action can be taken, or for setting a legal process in motion, it is incumbent and mandatory that such proceedings be complied with in order to authenticate the act or the legal process set in motion. See Gov. of Ebonyi State v. Isuama [2004] 6 NWLR (Pt. 870) 511 and N.N.P.C. v. Tijani [2006] 7 NWLR (Pt. 1007) 29 at 45. PER ADEGBEHINGBE, J.C.A.
THE RULE OF INTERPRETATION OF STATUTES
It is a cardinal rule of the construction of statutes that statutes should be construed according to the intention expressed in the statutes themselves. If the words of the statutes are themselves precise and unambiguous, then, no more is necessary than to expound the words in their natural and ordinary sense. The words of the statutes do alone in such a case, best declare the intention of the lawmaker. See Ahmad v. Kassim [1958] SCNLR 58; and Ibrahim v Barde [1996] 9 NWLR (Pt. 474) 513 at 577. PER ADEGBEHINGBE, J.C.A.
THE CONSEQUENCE OF A REPRESENTATIVE ACTION
In the case of Re: Apeh & Ors. [2017] LPELR – 42035(SC), the Court set the law as follows:
“Consequence of a Representative Action. It is to be noted again that in a representative action both the named plaintiff and/or defendant, as the case may be, and those they represent are parties to the action. However, the law permits only the named representatives as plaintiffs or defendants who are the DOMINUS LITIS (the masters of the suit) to sue or be sued in a representative capacity until when the suit is determined. And, for the purposes of initiating any process in representative action, such process MUST be by and in the name of the DOMINOS LITIS in the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncountermanded. Those represented, such as the applicants in this matter are deemed bound by whatever decision the Court would give for or against their representatives. See: Tesi Opebiyi v. Shittu Oshoboja & Anor (1976) 9-12 SC 195 at p. 200; Oketie v. Olughor (1995) S SCNJ 217 at 226; Atanda v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394; Ede v. Nwidenyi. In Re Ugadu (1988) 5 NWLR (Pt. 93) 161 at p; 169 Ekennia v. Nkpakara (1997) 5 SCNJ 70 at p. 88.
To clarify the matter further, any decision given for or against the representative is a decision for or against those other persons, individuals, groups etc. they represent. See Otapo v Sunmonu (1987) 2 NWLR (Pt.58) 587. By way of further elucidation, it was held in Pabiekun & Ors v Ajayi (1966) 1 All NLR 197 that the members of the group represented are so bound by the outcome of the proceedings that when Court makes an order for a defendant to defend on his family’s behalf and judgment is given against the family a member of that family who did not join the resolution that the defendant should represent the family cannot say that the judgment does not bind him and claim family property in his possession taken in execution of that judgment. If all the named parties in a representative action die, the action, provided it is still maintainable, subsists on behalf of and/or against those they represent and who have not been mentioned in the proceedings. But such action may not be prosecuted or continued until a living person(s) has been substituted for the named deceased party to carry on the representative action both on trial and also when the matter is on appeal. See: Attah & Ors v. Nnacho & Ors (1965) NMLR, 28; Oketie v. Olughor (supra).” Per MUHAMMAD, JSC. (PP. 43-47 paras. D).
See also Mbanefo v. Molokwu & Ors. [2014] LPELR- 22257(SC). PER ADEGBEHINGBE, J.C.A.
WHETHER OR NOT A FAMILY MEMBER CAN TAKE STEPS TO PROTECT AND PRESERVE FAMILY PROPERTY WHERE THERE IS A THREAT TO THE FAMILY LAND
In the case of Afeozioha v. Nwokoro [1999] 8 NWLR (Pt. 615) 393 at 403, this Court, relying on a decision of the Supreme Court, stated as follows:
“A member of a family and, a fortiori, a family head, who becomes aware of a threat to family land from external sources, can take necessary action to protect and preserve the family property. See the statement of the law by the Supreme Court in Animashawun v. Osuma, supra, also reported in (1972) 7 N.S.C.C. 253, at 261:
“In the instant case, the plaintiff brought the action as head of the Badaru Animashawun family. His testimony was clear on this point. From this, it is apparent that none of these cases is in pari materia. A case in point, to which we have been referred by learned counsel for the plaintiff is that of Sogunle v. Akerele and Ors (1967) N.M.L.R. 58. There we held that a member of a family may take steps to protect family property of his interest in it: if he has not the authority of the family to bring the action, the family would, of course, not be bound by the result unless for some reason the family was estopped from denying that the action was binding. Thus if an ordinary member of a family can take steps to protect family property without the family’s authority, the head of the family, such as the plaintiff, is in a much stronger position. It is our view, therefore, that he can take steps to protect family property, and indeed it is his duty to take such steps, with or without the prior authority of the other members of the family. The learned trial Judge was therefore in error in holding that the plaintiff lacked the capacity to bring the action.” PER ADEGBEHINGBE, J.C.A.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): This ruling is the result of the argument of an application on 12/01/2022. On that day, E. O. Chinda Esq. appeared for the applicant/party seeking to be substituted for the appellant, A. A. Ahmed Esq. (with O, Chike Esq. and M. Chike Esq.) appeared for the respondents. Both learned counsels adopted the written addresses filed on behalf of their respective clients.
The application being determined in this ruling was filed by the applicant/party seeking to be substituted for the appellant, on 05/01/2022. The Appellant could not have filed the application. The Appellant, Chief Emmanuel Nnanta Chinda is dead. His demise is the cause of the filing of the application, which requests this Court to make an order:
“…striking out the names of the Appellant, CHIEF EMMANUEL NNANTA CHINDA who is now deceased from this Appeal No. CA/PH/270/2010: Chief Emmanuel Nnanta Chinda vs. Dr. Princewill Chike & 4 Ors. and in his place substitute the Applicant, Mr. Goodknows Amadi as the Appellant in this appeal.”
The Applicant provided grounds for the application, as follows:
“(a) The original Appellant is now deceased and cannot remain on record as a named party to this appeal.
(b) The appeal cannot be sustained in the absence of a named party, in this instance the Applicant who has now assumed position as the head of Chokaa family, Eligbam, Rumueme, Port Harcourt.”
The application was followed to this Court by an affidavit, which Chika Chukwu deposed to.
Chika Chukwu is a female, adult, Litigation Secretary in the Chambers of E. O. Chinda & Co., solicitors to the applicant/party seeking to be substituted. That deponent testified in the identified affidavit, in part, as follows:
“2. I have the oral consent and authority of the Applicant/ Party seeking to be substituted for the Appellant and E. O. Chinda Esq. to depose to this affidavit.
3. I am aware that E. O. Chinda Esq., Principal/Managing Solicitor of my employers on behalf of the original filed this appeal against the judgment of the Rivers State High Court delivered on 23/1/2009.
4. On 10/11/2021 at 2.00 p.m in our office, the said E. O. Chinda Esq. informed me and I verily believed him that:
(i) The Appellant who was his father is now deceased and that he was buried on 11/9/2021.
(ii) The Applicant/Party seeking to be substituted for the Appellant is now the head of Chokaa family, Eligbam, Rumueme, Port Harcourt, on whose behalf this suit is being prosecuted.
(iii) The Appellant having become deceased can no longer be a named party in this appeal and so his name should be struck out as a party to this appeal.
5. I am informed by E. O. Chinda Esq. and I verily believed him that the Respondents will not be prejudiced by this application.” (Bold font for emphasis).
The written address, filed in argument of the application, was settled by E. O. Chinda Esq., who presented one issue for determination of the application, The issue is:
Whether by reason of the demise of the original Appellant the instant application to substitute him is grantable.
Learned counsel relied on paragraphs 3-5 of the affidavit in support of the application. Specifically, learned counsel noted that the:
“… original Appellant has become deceased. Following his demise, he was buried on 11/9/2021.”
He submitted with the aid of the case of Ironbar v. C. R. B.R. D. A. [2004] 2 NWLR (Pt. 857) 411 at page 426, that the named now deceased, appellant cannot legally continue with the appeal. He urged the Court to grant the application.
The 1st-4th respondents filed a counter-affidavit, on 12/01/2022, to record their opposition to the grant of the application. They also filed a written address, along with the counter-affidavit, which A. A. Ahmed Esq. signed.
The deponent in the counter-affidavit is Mrs. Oroma Pleasant Chike, a Legal Practitioner. She testified in the counter-affidavit, as follows:
“1. That I am one of the legal practitioners in legal Conquest Chambers handling this case for the 1st-4th Respondents and also a member of the Chokaa family and by virtue of the said position am very conversant with the facts of this case as deposed to herein.
2. That I have perused the affidavit in support of the Applicant’s motion and I have the consent and authority of the 1st- 4th Respondents and that of my employers to depose to this affidavit on behalf of the 1st-4th Respondents.
3. That the facts contained in paragraphs 1 and 3 of the affidavit in support of this application only exists in the mind of the deponent.
4. That the averments in paragraphs 2, 4ii and 5 of the affidavit in support of the application are false and are denied.
5. That the Chokaa family members are not happy with the pendency of this case and will want this matter to end in order to foster a cordial and peaceful relationship in the family.
6. That it has been Chief Emmanuel Nnanta Chinda – the deceased Appellant, and his son – E. O. Chinda, Esq that have ensured the existence of this case till date.
7. That there is no family resolution to continue this appeal or appointing Mr. Godknows Amadi to prosecute this appeal on behalf of the Chokaa family.
8. That the 1st-4th Respondents will be prejudiced if this application is granted as it will encourage and renew the Chokaa family crisis.”
The sole issue nominated, for the resolution of the application, is:
Whether or not the Chokaa family wants this appeal/matter to continue after the death of Chief Emmanuel Nnanta Chinda to warrant substitution and appointment of Mr. Godknows Amadi to substitute the deceased Appellant.
Learned counsel argued that the appeal, which was filed in a representative capacity on behalf of the Chokaa family, has its sustenance dependent on the decision of the Chokaa family. It was submitted that the Chokaa family members are “not happy” with the pendency of this case and will want this matter to end. Relying On the decision in Ejezie v. Anuwu [2008] 34 (Pt. II) NSCQR 996 at 1019, it was submitted that persons represented and the person(s) representing them should have the same interest in the cause or matter. It was pointed out that there is conflict of interest between the applicant and the Chokaa “family members”. The family did not appoint the applicant or authorize the applicant to represent them in this appeal.
The attention of the Court was drawn to paragraph 7 of the counter-affidavit, where the right of the applicant to represent the family was “challenged”. He submitted that it is the duty of the applicant to prove that he was duly authorized. Citing the case of Lawal v. A. G., Kwara State (2011) All FWLR (Pt. 590) 1306 at 1313, learned counsel enumerated the requirements of representative action.
On what learned counsel described as “balance of convenience”, he Submitted that is in favor of the respondents and that the entire members of the Chokaa family will be prejudiced, if the application is granted. He advised that continuing with the appeal will encourage and renew Chokaa family crisis, while the family wants to foster cordial and peaceful relationship within the family.
He urged the Court to refuse the application.
At the argument of the motion on notice, on 12/02/2022, E. O. Chinda Esq. drew the Court’s attention to the notice of appellant’s death filed, on 05/01/2022, by which the demise of the erstwhile Appellant was reported to the Court and Registry of this Court. Learned counsel moved the motion to be determined in this Ruling, by adopting his written address, as argument of the application. He urged the Court to grant the application.
A. A. Ahmed Esq., for the 1st-4th respondents argued his clients’ opposition to the grant of the application, by relying on the counter-affidavit filed and adopting the written address filed. He urged the Court to refuse the application.
Dr. Innocent Egwu, for the 5th respondent, who did not file any process, elected to align with and adopt the submissions of the 1st-4th respondents’ counsel, as his, in opposing the grant of the application. He urged the Court to refuse the application.
Applicant’s counsel elected not to formally respond to the counter-affidavit and written address, filed by the 1st-4th respondents, which was apparently served on him on 12/01/2022, having been filed same day. He however, pointed out that paragraph 3 of the counter-affidavit did not deny the demise of the erstwhile appellant. He also pointed out that paragraph 5 of the same counter-affidavit is not backed by any fact.
What is in issue in this Ruling?
Death is the privilege of the living. It is the corollary of existence for the human especially. Thus, when death claims a being, who is involved in litigation, issues will be thrown up. These issues are:
a. Whether the party is dead?
b. Whether the dispute before the Court is one which survives the deceased party?
c. Whether there is anyone or other entity interested in succeeding or entitled to succeed the deceased party to the dispute in Court.
d. Whether there are good grounds for the Court to allow the substitution of the prospective party, in place of the deceased party.
In most cases, answers to the posers raised above are not left to conjecture, by the law. There are usually provisions in the Rules of Court to ensure a smooth resolution of the issues highlighted above. Thus and for example, in the Court of Appeal, it bears recall that the motion on notice under consideration in this Ruling, according to the Applicant’s counsel, was brought by the prescription of Order 15 Rule 2 of the Court of Appeal Rules, 2021. However, for the purpose of completeness, it is advisable that Rule 1 should be considered along with Rule 2. Order 15 Rules 1 and 2 of the named Rules provides, explicitly, as follows:
“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.”
Where a statute lays down a certain procedure that ought to be followed before an action can be taken, or for setting a legal process in motion, it is incumbent and mandatory that such proceedings be complied with in order to authenticate the act or the legal process set in motion. See Gov. of Ebonyi State v. Isuama [2004] 6 NWLR (Pt. 870) 511 and N.N.P.C. v. Tijani [2006] 7 NWLR (Pt. 1007) 29 at 45.
It is a cardinal rule of the construction of statutes that statutes should be construed according to the intention expressed in the statutes themselves. If the words of the statutes are themselves precise and unambiguous, then, no more is necessary than to expound the words in their natural and ordinary sense. The words of the statutes do alone in such a case, best declare the intention of the lawmaker. See Ahmad v. Kassim [1958] SCNLR 58; and Ibrahim v Barde [1996] 9 NWLR (Pt. 474) 513 at 577.
Whether the party is dead?
With the notice of the demise of the erstwhile appellant, filed by his counsel on 05/01/2022, the deceased appellant’s counsel discharged a personal obligation imposed by law that the Registrar of this Court (and all other parties in the matter) should be notified about the demise of a party, in a matter before the Court of appeal. Order 15 Rule 1 was respected and complied with in this matter.
The respondents have not challenged or disputed the fact of the demise of CHIEF EMMANUEL NNANTA CHINDA and his consequential interment on 11/09/2021, as deposed in paragraph 4(i) of the affidavit in support of the application, which was deposed to by a person who clearly stated that she had the authority of the applicant to depose to the affidavit, without being controverted and the fact challenged by the respondent. That fact, I mean the fact of the conclusion of the life of Chief Emmanuel Nnanta Chinda, is held by me to be proved as a fact. The man died. The man has been buried.
Whether the dispute before the Court is one which survives the deceased party?
It appears clear from the processes filed before this Court that the dispute which pursued the parties or which the parties pursued to this Court arose from a disagreement over ownership of or entitlement to land. That type of dispute clearly survived the deceased, erstwhile Appellant in death. It must be stated, at this point, that it is not all disputes which will survive the demise of a party to a dispute.
The dispute further survived the Appellant because the Appellant was before this Court as a representative of the Chokaa family Eligbam, Rumueme, Port Harcourt, which attracts legal implications.
In the case of Re: Apeh & Ors. [2017] LPELR – 42035(SC), the Court set the law as follows:
“Consequence of a Representative Action. It is to be noted again that in a representative action both the named plaintiff and/or defendant, as the case may be, and those they represent are parties to the action. However, the law permits only the named representatives as plaintiffs or defendants who are the DOMINUS LITIS (the masters of the suit) to sue or be sued in a representative capacity until when the suit is determined. And, for the purposes of initiating any process in representative action, such process MUST be by and in the name of the DOMINOS LITIS in the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncountermanded. Those represented, such as the applicants in this matter are deemed bound by whatever decision the Court would give for or against their representatives. See: Tesi Opebiyi v. Shittu Oshoboja & Anor (1976) 9-12 SC 195 at p. 200; Oketie v. Olughor (1995) S SCNJ 217 at 226; Atanda v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394; Ede v. Nwidenyi. In Re Ugadu (1988) 5 NWLR (Pt. 93) 161 at p; 169 Ekennia v. Nkpakara (1997) 5 SCNJ 70 at p. 88.
To clarify the matter further, any decision given for or against the representative is a decision for or against those other persons, individuals, groups etc. they represent. See Otapo v Sunmonu (1987) 2 NWLR (Pt.58) 587. By way of further elucidation, it was held in Pabiekun & Ors v Ajayi (1966) 1 All NLR 197 that the members of the group represented are so bound by the outcome of the proceedings that when Court makes an order for a defendant to defend on his family’s behalf and judgment is given against the family a member of that family who did not join the resolution that the defendant should represent the family cannot say that the judgment does not bind him and claim family property in his possession taken in execution of that judgment. If all the named parties in a representative action die, the action, provided it is still maintainable, subsists on behalf of and/or against those they represent and who have not been mentioned in the proceedings. But such action may not be prosecuted or continued until a living person(s) has been substituted for the named deceased party to carry on the representative action both on trial and also when the matter is on appeal. See: Attah & Ors v. Nnacho & Ors (1965) NMLR, 28; Oketie v. Olughor (supra).” Per MUHAMMAD, JSC. (PP. 43-47 paras. D).
See also Mbanefo v. Molokwu & Ors. [2014] LPELR- 22257(SC).
It is the holding of this Court that the appeal before the Court is capable of being sustained and prosecuted, being one arising from a land dispute and having been brought in a representative capacity.
Whether there is anyone or other entity interested in succeeding or entitled to succeed the deceased party to the dispute in Court?
With the demise of the erstwhile Appellant having been established or not being in dispute between the parties, it is now imperative for this Court to make a finding on whether there is anyone or entity, interest or entitled to succeed the deceased party to the dispute.
Order 15 Rule 2 of the Court of Appeal Rules, 2021 creates an “either-or” situation. That is a two-way prescription for entitlement or request to be substituted as a party to proceedings in the Court of Appeal arising from death of an erstwhile party. “The two types of persons or entitles who may apply to be substituted are, cither:
a. any existing party to the appeal; or,
b. by any person who wishes to be added or substituted.
It is important to point out that this is not a straight-forward case of application of principles of representative action. The appeal before the Court has been initiated and is pending. What happened is that the Appellant who brought the appeal in a representative capacity died, unfortunately. Thus, this Court is called upon, by the Applicant to consider his application, with the view ensuring the conclusion of the process of the determination of the appeal before it. That is the reason for the law providing that existing parties may apply to be substituted. Existing parties, in that regard, would refer to parties who were being represented by the deceased appellant, as in this case, who are not named as parties in the appeal. It would be ridiculous for a person, already named in an appeal to, at the same time request for substitution. That is not what is intended. In this appeal, the Applicant is said (by the deponent to the affidavit in support of the application) to have taken over the mantle of headship of the Chokaa family, which implies that he is a member of that family, who was not named in the appeal, though represented by the deceased Appellant in this appeal, before now. In that wise, the Applicant is entitled to be joined to continue the prosecution of the appeal.
In another respect, with the applicant as the head of the family, he does not need the authority of any other member of his family to take any action regarding the prosecution of the appeal. He is now the head of the family, which attracts such consequences. The head of a family is not a figure head. He is there for a purpose and his decision once made, must be respected but can be challenged and overturned through a popular vote at another meeting, or by an order of a Court of competent jurisdiction. See Vincent v. Vincent [2008] 11 NWLR (Pt. 1097) 35 at 46, per Monica Dongbam-Mensem, JCA. (as he then was). The deponent to the counter-affidavit did not mention the name of any other person who is the head of the Chokaa family. The deponent to the counter-affidavit did not depose to that affidavit on behalf of and with the authority of the Chokaa family. Thus, the deponent to the counter-affidavit (Mrs. Oroma Pleasant Chike) who claims to have deposed to that affidavit in a dual capacity – as legal practitioner handling the matter and as a member of the Chokaa family – was merely expressing her personal views of the facts, which does not carry any evidential weight in these proceedings. There is no controversy activated by the puerile denial of the headship of the Chokaa family by Applicant, in the counter-affidavit. If he is not the head of the family, then who is? The deponent did not say.
In the case of Afeozioha v. Nwokoro [1999] 8 NWLR (Pt. 615) 393 at 403, this Court, relying on a decision of the Supreme Court, stated as follows:
“A member of a family and, a fortiori, a family head, who becomes aware of a threat to family land from external sources, can take necessary action to protect and preserve the family property. See the statement of the law by the Supreme Court in Animashawun v. Osuma, supra, also reported in (1972) 7 N.S.C.C. 253, at 261:
“In the instant case, the plaintiff brought the action as head of the Badaru Animashawun family. His testimony was clear on this point. From this, it is apparent that none of these cases is in pari materia. A case in point, to which we have been referred by learned counsel for the plaintiff is that of Sogunle v. Akerele and Ors (1967) N.M.L.R. 58. There we held that a member of a family may take steps to protect family property of his interest in it: if he has not the authority of the family to bring the action, the family would, of course, not be bound by the result unless for some reason the family was estopped from denying that the action was binding. Thus if an ordinary member of a family can take steps to protect family property without the family’s authority, the head of the family, such as the plaintiff, is in a much stronger position. It is our view, therefore, that he can take steps to protect family property, and indeed it is his duty to take such steps, with or without the prior authority of the other members of the family. The learned trial Judge was therefore in error in holding that the plaintiff lacked the capacity to bring the action.”
Thus, both as a member of the Chokaa family and also, as its head, the Applicant has justified his substitution in place of the deceased erstwhile Appellant in this appeal. This Court will grant the application because there is a need for the appeal to be drawn to conclusion.
It is important to highlight the fact that the other arm of Order 15 Rule 2, in respect of the prescription that “any person who wishes to be added or substituted” may bring the application, is intended to provide flexibility to the Court in identifying and allowing appropriate persons, with appropriate intentions, regarding the matter before it, to continue with the prosecution of those matters. It is a matter of discretion granted to the Court on appropriate persons to permit, which discretion is expected to be exercised judiciously and judicially. And the stream of thoughts of the Courts have been directed to treating the determination of such issues as simple and not expected to be contentious. In the case of Transamerica Corp. v. Akande & Ors. (2014) 15 NWLR (Pt. 1431) 502 at 528 per Oseji, JCA. (as he then was) stated how the Courts should view substitution of parties when he said:
In my humble view, an application for substitution of a party should not create much fuss provided the party sought to be brought in is a proper, legal and genuine representative or successor of the party to be substituted. I am therefore comfortable with the decision in Ejezie v. Anuwu (2008) 4 SCNJ 113 (2008) 12 NWLR (Pt. 1101) 446 to the effect that an application for substitution of a person in litigation is generally an innocuous one granted as a matter of routine.
In the case of Re: Apeh (2017) LPELR (42035) 1 at 35 -36; (2017) 11 NWLR (Pt. 1576) 252, the Court advised as follows:
“I think it is apt for me at this stage, to remind my noble Lord, in a concise manner the general principles of the law relating to substitution. When one puts something by way of replacement or change of another, whether a person or a thing, that would amount to substitution. The law may permit a person to substitute another in a law suit (including appeal) where there is genuine case of death, bankruptcy, assignment transmission or devolution of interest or liability or a party to the suit or appeal, where the need to substitute is obvious in fact and in law. Where a party is dead, he cannot physically take part anymore in the proceedings. His position must necessarily be taken over by the beneficiary who inherits him and who subsequently inherits the litigation. Otherwise, the action for or against the deceased will abate unless appropriate steps are taken to substitute a living person for the deceased… Bankruptcy of one of the parties to a suit while the suit is pending, may also abate except where a trustee(s) takes over. Comprehensive rules are made by the various (now unified) High Court Rules which take care of such circumstances. (Italic supplied).
Dealing with the essence of an application for the substitution of a person in litigation, Tobi, JSC. stated, as follows in Ejezie v. Anuwu (2008) 12 NWLR (Pt. 1101) 446 at 489:
“…generally an innocuous one granted as a matter of routine. This is because of the state of our adjectival law that parties should have free hand to change persons in the litigation process. And so applications for substitution do not generally give any problem…”
The applicant has proved or shown himself as a fit and proper person to be substituted in place of the deceased erstwhile appellant. There is no merit in the opposition mounted by the respondents.
Whether there are good grounds for the Court to allow the Substitution of the prospective party, in place of the deceased party.
The record of appeal shows that the suit, which translated into this appeal, was filed on 13/04/1999. The judgment appealed against was delivered on 23/01/2009, Appeal against that judgment was filed on 21/04/2009. The appeal number suggests that the appeal was entered and numbered in 2010. When the appeal arrived in this Court, there were two Appellants. One after the other, the two Appellants were deleted from the world by nature or death. It is appropriate to ensure that members of the family, led by the Applicant (as the new head of the Chokaa family) should be allowed to take their dispute to a logical conclusion, as permitted by the law.
There is merit in the application, which is hereby granted, as prayed. The Applicant – MR. GODKNOWS AMADI – is hereby substituted for CHIEF EMMANUEL NNANTA CHINDA (now deceased) in this Appeal No. CA/PH/270/2010, as the Appellant in this appeal, while the name of the latter is struck out of this appeal.
Parties are to file amended processes, as consequence of the order granted in this Ruling.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the Ruling prepared by my learned brother, Adegbehingbe, J.C.A., and add that Order 15 Rule 2 of the Court of Appeal Rules 2021 makes provision for addition or substitution of a party and in the case of a deceased party where the cause of action survives, as in this case, an application for substitution by a person entitled to step in and replace the deceased party and continue with the case is almost always made and granted routinely or as a matter of course.
Thus in the Supreme Court case of Arowolo v. Akapo and Ors (2006) 18 NWLR (Pt.1010) 94 where an application of this nature predicated on similar rule of Court was granted on the basis that the judgment on appeal affected the rights of the Appellant’s family and therefore the interest of justice demanded that a member of his family be put forward in the place of the late Appellant; it was not a personal affair of the person concerned, but a substantial family matter in which it was proper to substitute the deceased so as to protect the interest of the family as the interest of that family in the dispute survived the death of the original appellant.
Accordingly, I too see merit in the application and would grant it and abide by the consequential order(s) contained in the lead Ruling.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the opportunity of reading in draft the lead Ruling of my learned brother, Olabode Abimbola Adegbehingbe, JCA. With nothing useful to add, I agree that there is merit in the application filed on 05/01/2022 which I hereby granted as prayed.
I abide by the consequential order made therein.
Appearances:
E. O. Chinda, Esq. For Appellant(s)
A. A. Ahmed, Esq., with him, O. P. Chike Esq. and M. Chike, Esq. – for 1st – 4th Respondents
Dr. I. Ikwu – for 5th Respondent For Respondent(s)
