JACOB v. EFURIBE & ORS (2021)

JACOB v. EFURIBE & ORS

(2021)LCN/15000(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, February 28, 2020

CA/OW/336/18

RATIO

APPEAL: DUTY OF AN APPELLATE COURT CONSIDERING APPEALS FROM CUSTOMARY COURTS

In OKEKE VS. PRESIDENT AND MEMBERS OF CUSTOMARY COURT (2010) 11 NWLR (PT. 725) 507 the Court held that in considering appeals from Customary Courts, an appellate Court is required to examine the entire records as men of common sense and not as lawyers trained in all the technical details of the Rule of evidence, procedure and substantive law. The justification of the above is not far reached. This is because the Customary Courts are required to adopt the simplest procedure in dealing with cases before them. It is therefore totally erroneous for the Appellate Court entertaining an appeal from such Courts to start looking for evidence of power of attorney.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
ACTION: REQUIREMENT IN CASES WHERE THE ACTION SURVIVES THE DECEASED PARTY

Now, it is trite that in cases where the action survives the deceased party, such deceased party must of necessity be substituted with a living person who has sufficient interest in the subject matter of the litigation or suit, who will then continue and complete the case. See OKON VS. AJI (2017) LPELR-43464 (CA) and EJEZIE VS. ANUWU (2008) 12 NWLR (PT. 1101) 466. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

OBIEFULA JACOB APPELANT(S)

And

1. DICK EFURIBE 2. CHIMA EFURIBE 3. VICTOR EFURIBE RESPONDENT(S)

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): The father of the Appellant who was Jacob Efuribe and the Respondents are children of one and the same man – Efuribe Eneogwe. Jacob Efuribe was the first son of Efuribe Eneogwe, born to him by his first wife, Annah while the Respondents were begotten by the second wife called Alice.

Jacob Efuribe was said to have been brutally beaten by soldiers who were vandalizing his palm trees. This beating affected Jacob Efuribe’s ears and eventually made him to be deaf. This event occurred in 1970.

Efuribe Eneogwe fell sick and died in 1994. His children, including Jacob, sold some of his landed assets and gave him a befitting burial. At this time due to Jacob Efuribe’s illness his half brothers took charge of their father’s remaining landed assets, and were said to have excluded their elder brother Jacob from the use and enjoyment of same.

Jacob with his first son Obiefula Jacob who acted as his Attorney, then jointly sued his half brothers in the Customary Court of Abia State of Nigeria in Obingwa L.G.A sitting at Obikabia, constituted by Hon. Enyimaya Nwabaghi

as chairman, and Hon. I. A. Eneogwe and Hon. S. O. Agomuoh as members, in Suit No. CC/OB/15/2009. Jacob Efuribe however died on 8th December, 2009 leaving his son Obiefula to continue with the case, which was decided against the Respondents on 15th December, 2010. Aggrieved by that judgment the Respondents appealed to the Customary Court of Appeal of Abia State, sitting in Umuahia, Coram: Hon. Justice S.M.C. Onyenso–Ururuka, PCCA, Hon. Justice Okey I. Nwamoh, JCCA and Hon. Justice N.U. Wachukwu, JCCA, in Appeal No. CCA/UM/A/2/2018.

In the course of hearing the appeal in the Court below, the issue of substitution of late Jacob Efuribe arose and the Honourable Customary Court of Appeal, henceforth to be referred to as the “Lower Court”, granted an application, substituting Obiefulafor his late father, Jacob Efuribe. At the end of the appeal the Lower Court gave judgment against Obiefula Jacob as the Respondent and in favour of the Appellants, on 27th March, 2018. See pages 112–132 of the Record of Appeal, simply referred to as “the Record” for short.

Dissatisfied with the judgment the Appellant has appealed to this

Court vide Notice of Appeal (pages 133–137 of the Record) containing 4 grounds of Appeal, with their particulars are as follows:-
“GROUND ONE
The Customary Court of Appeal erred in law in assuming jurisdiction to hear the appeal when there was no ground of appeal raising issue of customary law.
PARTICULARS OF ERROR
1. Ground one of the grounds of appeal before the lower Court raised an issue of proper parties which had nothing to do with customary law.
2. Ground two of the grounds of appeal raised an issue of non-substitution of a dead Plaintiff which had nothing to do with customary law.
3. Both grounds of appeal raised issues of general adjectival law which are alien to Customary Law and accordingly the lower Court had no jurisdiction to hear the same by virtue of the provision of Section 282 of the Constitution of the Federal Republic of Nigeria 1999.
GROUND TWO
The Customary Court of Appeal erred in Customary law by holding as follows:-
“I quite agree with the submissions of the Respondent’s Counsel, that an action relating to land survives the deceased and that it is only where the suit

is on the personal right of a deceased litigant that the right of action dies with the deceased. However it is my view and I so hold, that where the action survives the deceased, it is mandatory to substitute the deceased party, with a person with interest in the subject matter to give live (sic) to the suit.”
PARTICULARS OF ERROR.
1. There is nothing under the Customary Law applicable to the parties that make it mandatory for there to be a substitution of a deceased party with a living one in cases that survive death.
2. The Customary Law applicable to the parties is for the surviving successors of the deceased to continue without ado or formal substitution.
3. Formal requisite of substitution is strictly not applicable to proceedings conducted in the Customary Court and such proceedings are statutorily saved by Section 21 of the Customary Court Law of Abia State.
4. No proceedings in a Customary Court and no summons, warrant, process, order or decree issued or made thereby, shall be varied or declare (sic) void upon appeal solely by reason of any defect in procedure or want of form but every Court or authority exercising powers

of appeal under this Edict shall decide all matters according to substantial justice.
GROUND THREE
The Customary Court of Appeal erred in Customary Law when it held as follows:-
“I am of the view and I so hold that the order granting leave to substitute Obiefula Jacob for Jacob Efuribe, granted with the consent of both parties was for the purpose of saving this appeal, so that the matter could be determined on its merit. I do not subscribe to the submission of Learned Counsel to the Respondent that the doctrine of relation back is applicable to this case. The fact that the deceased Plaintiff was not substituted by the trial Court is not in dispute. The gravamen of this Appeal is to determine whether the orders and decision reached by the trial Court, after the death of the Plaintiff were competently made. I am not persuaded by the submission of the Respondents’ Counsel that this Court has the power by virtue of Section 60 of the Customary Court Law to effect the substitution of the deceased Plaintiff which the trial Court failed to do. This Court has no power to validate the consequences of an incompetent proceeding by virtue of

Section 60 of the Customary Court Law.”
PARTICULARS OF ERROR:
1. There is nothing under the Customary Law applicable to the parties that make it mandatory for there to be a substitution of a deceased party with a living one in cases that survive death.
2. The Customary Law applicable to the parties is for the surviving successors of the deceased to continue without ado or formal substitution.
3. Even if such substitution was mandatory under Ngwa Native Law and Customs, which is denied, the substitution at the Customary Court of Appeal saved the proceedings at the lower Court as the Appellate Court was dominis litis- it could do all things as the lower Court could have done in the interest of substantial justice.
4. The Customary Court of Appeal under Section 60 (a) of the Customary Court Law of Abia State was within its powers to make any order which the Court of first instance could have made in the cause or matter.
5. Having made the order of substitution at the Appellate Customary Court, there was no longer any live issue in the Appeal before it as the appeal before it became merely of academic interest only.

GROUND FOUR:
The Customary Court of Appeal erred in Customary Law when it held that the substitution it made was limited only to save the Appeal before it and not to save the judgment of the trial Customary Court.”
PARTICULARS OF ERROR
1. Even handed justice is the hallmark of the rules and precepts of Ngwa Customary Arbitration applicable to the cause or matter now on appeal.
2. It is contrary to Ngwa Native Law and Custom of even handed justice to apply the substitution made by the Court below to favour the Appellants and to disfavour the Respondent before it.
3. If the substitution done by that Court was to save the appeal before it, there is nothing under Ngwa Native Law and Custom to prevent the substitution to save the judgment of the trial Customary Court.
4. If the substitution done by the Customary Court of Appeal was good to save the appeal, it was equally good to save the judgment of the trial customary Court as Customary Law is based on equity and equality of treatment of both parties in the process of litigation.”
The Relief sought by the Appellant is for this Court
“to allow the appeal, set

aside the judgment of the Court below and uphold the judgment of the trial Customary Court.”

Now, the Record of Appeal was transmitted to this Court on 23/7/18. The Appellant’s Brief of Argument, settled by David Onyeike Esq., was filed on 20/8/18. The Respondents’ Brief of Argument, settled by Isaiah S. Ezeudu, Esq., was with the leave of this Court granted on 12/3/19, filed on 14/12/18 but deemed properly filed and served on 12/3/19. The Appellant filed his Reply Brief on 20/12/18. The appeal was heard on 4/12/2019 on which date learned counsel on both sides adopted their respective briefs, with the appellant urging us to allow the appeal while the respondents urging us to dismiss same.

In the Appellant’s Brief, four (4) issues were identified for determination of this appeal which are:-
“1. Whether the grounds of Appeal filed and argued at the lower Court raised issue of Customary Law. (Ground 1)
2. Whether the formal requisite of substitution of a dead person for (sic)a living person is mandatory in Customary Courts in view of the provision of Section 21 of the Customary Courts Law of Abia State. (Ground 2)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether the substitution of the Attorney for the dead Plaintiff at the Customary Court of Appeal was sufficient in law to save the judgment of the Customary Court. (Ground 3)
4. Whether the Court below was right when it construed the substitution of the Attorney for the dead Plaintiff in other (sic) to save only the appeal and not the judgment appealed against. (Ground 4)”

The Appellant argued the issues thus:-
ISSUE ONE
“ON WHETHER THE GROUNDS OF APPEAL FILED AND ARGUED AT THE LOWER COURT RAISED ISSUE OF CUSTOMARY LAW.”

Learned Appellant’s Counsel submitted that it is settled that the jurisdiction of the Court below under Section 282 of the 1999 Constitution (as amended) is to hear appeals from Customary Courts on issues of Customary Law. Counsel quoted Section 282(1) of the Constitution and referred to PAM VS. GWON (sic) (2000) 74 LRCN 22 or (2000) 1 WRN 58 for what constitutes customary law and submitted that the two grounds of appeal before the lower Court raised issue of general adjectival law, and not issues of Customary law as they raised the issue of the death of the Plaintiff represented by an

Attorney. He urged this Court to strike out the grounds of appeal before the lower Court for want of jurisdiction.
ISSUE TWO
“ON WHETHER FORMAL REQUISITE OF SUBSTITUTION OF A DEAD PERSON FOR(sic) A LIVING PERSON IS MANDATORY IN CUSTOMARY COURTS IN VIEW OF THE PROVISION OF SECTION 21 OF THE CUSTOMARY COURT LAW OF ABIA STATE.”

Learned Appellant’s Counsel quoted the portion of the judgment of the lower Court at page 120 of the Record and submitted that there is nothing under the Customary Law applicable to the parties which makes it mandatory for a substitution of a deceased party with a living person where the cause of action survives the death of a party; that it is enough if survivors of the deceased party step into the shoes of the deceased and continue without much ado or any formal substitution, which is not strictly applicable in proceedings conducted in the Customary Courts as such proceedings are saved by Section 21 of the Customary Courts Law of Abia State, which Rules of that Court do not provide for substitution of deceased parties with the living; that Rules of Procedure and Practice applicable in Superior Courts of

Record are not strictly applicable or followed in Customary Courts, relying on OKEREKE VS. JAMES (2012)16 NWLR (PT. 1326) 339 at 350; GBAGBARIGHA VS. TORUEMI (2013) 6 NWLR (PT. 1350) 289 at 308; TIMOTHY VS. FABUSUYI (2013) 1 NWLR (PT. 1335) 379 at 398; that this principle of treating the substance rather than form has received statutory imprimatur in Section 21 of the Customary Courts Law of Abia State which provides that no proceedings in a Customary Court and no summons, warrant, process, order or decree issued or made thereby, shall be varied or declared void upon appeal solely by reason of any defect in procedure or want of form but that every Court or authority exercising powers of appeal shall decide all matters according to substantial justice. Counsel then urged us to resolve this issue in favour of the Appellant.

ISSUES THREE AND FOUR
“ON WHETHER THE SUBSTITUTION OF THE ATTORNEY FOR THE DEAD PLAINTIFF AT THE CUSTOMARY COURT OF APPEAL WAS SUFFICIENT IN LAW TO SAVE THE JUDGMENT OF THE CUSTOMARY COURT AND WHETHER THE COURT BELOW WAS RIGHT WHEN IT CONSTRUED THE SUBSTITUTION OF THE ATTORNEY FOR THE DEAD PLAINTIFF IN OTHER (sic) TO SAVE ONLY

THE APPEAL AND NOT THE JUDGMENT APPEALED AGAINST.”

Learned Counsel quoted the portion of the judgment of the lower Court at page 108 of the Record dealing with the substitution of the deceased Jacob Efuribe with his son Mr. Obiefula Jacob and submitted that there is no authority cited by the lower Court for its far reaching proposition of law; that there is nothing under the Customary Law applicable to the parties that makes it mandatory for the substitution of a deceased person with a living person in cases which survive death; that the customary law applicable to the parties is for the survivors of the deceased to continue with the case without much ado or any formal substitution; that assuming without admitting that substitution under Ngwa Native Law and Custom is mandatory, the substitution made by the Customary Court of Appeal has saved the proceedings at the lower Court as the Appellate Customary Court was dominis litis – it could do all things as the trial Court could have done in the interest of substantial justice; that it was within the powers of the lower Court under Section 60(a) of the Customary Courts Law of Abia State to make

any order which the Court of first instance could have made in the cause or matter and that having made the order of substitution at the Appellate Customary Court, there was no longer any live issue in the Appeal before the Court below as the appeal has become merely academic; that the Court below stated the law wrongly when it held that the substitution it made was limited only to save the appeal before it and not to save the judgment of the trial Customary Court; that even handed justice is the hallmark of the rules and precepts of Ngwa Customary Arbitration applicable to the cause or matter now on appeal and so what the lower Court did in respect of substitution was or is contrary to the principle of the Customary law; that the Court below should have allowed the substitution to cover the entire appeal including the judgment of the trial Customary Court; that equity is equity and as such any scheme of justice which treats the parties unequally cannot be said to wear the veneer of justice as in this case; that the purpose of equity is to mix same with law to achieve justice, relying on TRANS BRIDGE CO. LTD. VS. SURVEY INTERNATIONAL LTD. (1986) 4 NWLR (PT. 37)

576; that Courts should dispense justice equitably, relying on LAGOS STATE WATER CORPORATION VS. SAKAMORI CONSTRUCTION (NIG) LTD (2011) 12 NWLR (Pt. 1262) 596, 608; OLADEKOYI VS. I.G.P. (2011) 16 NWLR (PT. 1273) 406, 430; that with the substitution of the late Plaintiff by the lower Court, there was no more live issue to be decided by that Court as the substitution was done with the consent of both parties; that amendment of process takes effect from the date of the previous process amended resulting in the doctrine of relation back, relying on so many cases, including;
(1) AJAKAIYE VS. ADEDEJI (1990) 7 NWLR (PT. 161) at 207;
(2) OJOKOLOBO VS. ALAMU (1987) 3 NWLR (PT. 61) 377 or (1987) 7 SC (PT. 1) 124, 132
(3) VULCAN GASES LTD VS. G. F. INDUSTRIES A. G. (2001) 9 NWLR (PT. 719) 610
(4) MOBIL OIL (NIG) LTD VS. YUSUF (2012) 9 NWLR (PT. 1304) 47 at 57
(5) BELLO VS. I.N.E.C. (2010) 8 NWLR (PT. 1196) 342 at 385 A – B
(6) ROTIMI VS. MACGREGOR (1994) 11 SC 113
(7) OSEYOMON VS. OJO (1993) 6 NWLR (PT. 299) 344

Learned Counsel then urged us to hold that the interpretation placed on the substitution by the lower Court was not

in line with equitable concept of justice; that the lower Court relied on technicalities in its decision, which it ought not to have done in adjudication, relying on UNION BANK PLC. VS. EDIONISERI (1988) 2 NWLR (PT. 74) 93; JULIUS BERGER (NIG) LTD VS. GEMI (1993) 5 NWLR (PT. 255) 612; ADELAJA VS. ALADE (1999) 6 NWLR (PT. 608) 544 at 563, since with the substitution, Obiefula Jacob became party to the suit upon the death of his father; that the two issues be resolved in favour of the Appellant and against the Respondents.

We were then urged to allow the appeal and set aside the decision of the lower Court in that:-
“(1) The grounds of Appeal filed and argued at the lower Court did not raise any issue of Customary Law;
(2) The formal requisite of substitution of a dead person for (sic) a living person is not mandatory in Customary Courts in view of the provision of Section 21 of the Customary Courts Law of Abia State;
(3) The substitution of the Attorney for the dead Plaintiff at the Customary Court of Appeal was sufficient in law to save the judgment of the Customary Court as there was no other live issue in the appeal;
(4) The

Court below was not right when it construed the substitution of the Attorney for the dead Plaintiff in other (sic) to save the appeal and not to save the judgment appealed against.”

The Respondents, vide their Counsel Isaiah S. Ezeudu Esq., submitted in response to the issues seriatim thus:-
ISSUE ONE
That there is no doubt that Section 282(1) of the 1999 Constitution (as amended) gives jurisdiction to the Customary Court of Appeal to hear appeals from Customary Courts on issues of Customary law, which is the current state of the law; but that the supreme Court has gone ahead to determine that jurisdiction is an issue of customary law because if the Court lacks jurisdiction to hear and determine a case, the judgment, no matter how excellently written, goes to no issue relying on:-
(1) MADUKOLU VS. NKEMDILIM (2006) 2 LC 208 (1261) NSCC (VOL. 2) 374
(2) TUKUR VS. TARABA STATE (1997) 6 SCNJ 81
(3) A. G. KANO VS. A. G. FEDERATION (2007) 6 NWLR (PT. 1029) (incomplete citation).
(4) W.A.E.C. VS. ADEYANJU (2008) NWLR (PT. 1092) 270
(5) NWIGWE VS. OKERE SC PT. 1011 (incomplete citation).

Learned Counsel referred to

pages 21 – 32 of the Record and submitted that as at 4/7/2010 when the trial Customary Court commenced hearing the case, there was no legal Plaintiff as the Plaintiff had died on 8/12/2009, some 2 months before the commencement of hearing of the case, thereby removing the jurisdiction of the trial Customary Court; that the Customary Court of Appeal, Umuahia was correct in its decision when it relied on the authority of OKUNZUA VS. DOHERTY, ALL FWLR PT. 528 at 929 at 945 – 946 (incomplete citation) to the effect that it is always mandatory to substitute a party to an appeal when the death of the Appellant or Respondent occurs; that lack of proper parties in a suit amounts to lack of jurisdiction, relying on JIMOH VS. ONYINLOYE (2006) 15 NWLR (PT. 1002) 392.

ISSUE TWO
Learned Counsel submitted that the essence of the substitution of the Appellant for the dead Plaintiff was to give life to the appeal quoting the judgment of the lower Court on page 126 line 7 of the Record; that reliance by the Appellant Counsel on Section 21 of the Customary Courts Edict No. 7 of 1984 (Imo State) applicable to Abia State and the doctrine of relation back so

as to validate the invalid proceedings and judgment of the Customary Court, Obikabia are inapplicable to this case and so the lower Court was right in its decision.

ISSUES THREE AND FOUR
Learned Counsel noted that these issues appeared to be repetition of issues 1 and 2, but ex abundantia cautela, submitted that the principle of dominis litis does not confer authority on the Customary Court of Appeal Umuahia, to validate an invalid proceeding at the Customary Court, Obikabia; that it is incredulous as well as it is incredible for the Appellant’s Counsel to contend and submit that the granting of leave by the lower Court to substitute the Appellant for his father who had died 9 years before the substitution has validated the proceedings conducted by the trial Customary Court; that one cannot place something on nothing and expect it to stand. Finally Counsel concluded and urged us to dismiss the appeal with exemplary cost for being frivolous and unmeritorious.

The Appellant filed a Reply Brief in which the same issues formulated, canvassed and responded to by the Respondents were re-argued. This is not the purpose of Reply Brief as no new

issues were raised and argued by the Respondents. Same is hereby discountenanced on the authority of ARULOGUN & ORS. VS. ABOLOYINJO & ANOR (2018) LPELR–44076 (CA) pages 43–44 para E where this Court, per Elechi, JCA held as follows:-
“Other arguments and submissions of learned Appellant’s Counsel in his reply brief amounted to re-arguing the Appellant’s brief already adopted. What Appellant’s Counsel failed to appreciate is that a reply brief is not a forum to either engage in arguments at large or reargue his Appellant’s brief. See OJO V. OKITIPUPA OIL PALM PLC (2001) 9 NWLR (PT. 719) 679 AT 693, OGBORU V. IBORI (2005) 13 NWLR (PT. 942) 319 where the Court exhaustively dealt with the function and essence of a reply brief. In the case of Cameroon Airlines v. Mike Otutuizu (2005) 9 NWLR (Pt. 929) 202 where the Court held that a nature of a reply should be limited to answering only new points arising from the Respondents brief and therefore should not be used to proffer further argument to those already made and contained in the Appellants brief. The effect of non compliance is that the Court will discountenance such argument. See

ONUAGULUCHI V. NDU (2000) 11 NWLR (PT. 590) 204 and A.C.B. LTD V. APUGO (1995) 6 NWLR (PT. 399) 65. On the basis of the above set of authorities, I hereby discountenance a greater part of the arguments Reply Brief as amounting to re-arguing the brief.”

RESOLUTION
ISSUE ONE
“Whether the grounds of Appeal filed and argued at the lower Court raised issue of Customary Law.” (Ground 1).

Now, ground one attacks the jurisdiction of the Lower Court to hear and determine the appeal when there was no ground of appeal raising the issue of Customary Law.
Learned Appellant’s Counsel had dwelt on the definition of customary law as propounded by the Apex Court in the case of PAM VS. GOM (2000) 74 LRCN 22 (also reported in (2000) 1 WRN 58) and submitted that no issue of customary law was raised before the Lower Court, thus ousting its jurisdiction to hear and determine the appeal. A careful consideration of this issue would appear to reveal that the issue of the Power of Attorney has been adequately dealt with by the Lower Court. It is clear from the Records, pages 122-124, that the Lower Court properly held that non tendering of the

written power of an attorney as exhibit in Customary Courts is a non issue. For its relevance I hereby reproduce the portion of the judgment of the Lower Court thus:
“It is the contention of the Learned Counsel to the Appellant, that there is nothing on record to show that OBIEFULA JACOB, the pw1 at the trial, tendered the alleged power of attorney given to him to prosecute the suit, and that the failure to tender the power of ATTORNEY as an exhibit disabled his authority to prosecute the suit in the Court below. The Respondent’s Counsel on the other hand contends that power of Attorney being a written document is unknown to Customary Law and none tendering of such document cannot vitiate a properly conducted trial by the Court.
I have carefully gone through the Records of appeal and noted that the capacity under which the pw1 prosecuted the suit was not in doubt. On the face of the claim it is disclosed that the Plaintiff is Jacob Efuribe (by his Attorney) Obiefula Jacob. In his evidence in chief the pw1, at page 19 lines 9-10, said “it is as a result of the Defendants to surrender their late father’s properties that made my

father sue the defendants to this Honourable Court in my name as ATTORNEY as he is deaf and cannot hear.” The DW1 Dick Efuribe, in his evidence in chief at page 30 lines 10-14 stated, “Obiefula sued me and my brothers, on behalf of his father Jacob Efuribe, our elder brother asking the Court to order and constitute a panel to share our father’s property.
From the foregoing, it is clear that the authority under which the PW1 prosecuted the suit at the trial Court was not in dispute. In the circumstance, it is not necessary for the trial Customary Court to look for evidence of power of Attorney. In OKEKE VS. PRESIDENT AND MEMBERS OF CUSTOMARY COURT (2010) 11 NWLR (PT. 725) 507 the Court held that in considering appeals from Customary Courts, an appellate Court is required to examine the entire records as men of common sense and not as lawyers trained in all the technical details of the Rule of evidence, procedure and substantive law. The justification of the above is not far reached. This is because the Customary Courts are required to adopt the simplest procedure in dealing with cases before them. It is therefore totally erroneous for

the Appellate Court entertaining an appeal from such Courts to start looking for evidence of power of attorney.”
Consequently upon the above, I hold that the failure of the Plaintiff ATTORNEY, to tender the power of Attorney at the Court below as exhibit, did not disable his Authority to prosecute the suit at the Court below. I hereby resolve issue 1 against Appellant.”

Consequent upon the above, I hold that there was the issue of customary law which was properly decided based on the power of an Attorney. I resolve this issue against the Appellant.

ISSUE TWO
“Whether the formal requisite of substitution of a dead person for (sic) a living is mandatory in Customary Courts in view of the provision of Section 21 of the Customary Court Law of Abia State (Ground 2).”

Let me briefly comment on the phraseology of this issue, in which the Learned Appellant’s Counsel has indicated that a dead person can be substituted for a living person. I think the reverse should be the case. That is to say the dead should be substituted with the living. I say no more on this.

Now the grouse of the Appellant in this issue is

against the portion of the judgment of the Lower Court which runs thus:-
“I quite agree with the submission of the Respondent’s Counsel, that an action relating to land survives the deceased and that it is only where the suit is on the personal right of a deceased litigant that the right of action dies with the deceased. However it is my view and I so hold that where the action survives the deceased, it is mandatory to substitute the deceased party, with a person with interest in the subject matter to give live (sic) to the suit.” (page 120 of the Record).
It is clear from the Record, which I have carefully considered, that the Plaintiff at the trial Customary Court sued through an Attorney; the Plaintiff died before hearing commenced; the Attorney did not disclose the fact of the death of the Plaintiff; the Attorney continued with the case, even though the fact of the death was elicited through cross-examination of the Attorney, until judgment was given in favour of the Plaintiff; the trial Customary Court did not substitute the Attorney for the deceased Plaintiff. Now, it is trite that in cases where the action survives the

deceased party, such deceased party must of necessity be substituted with a living person who has sufficient interest in the subject matter of the litigation or suit, who will then continue and complete the case. See OKON VS. AJI (2017) LPELR-43464 (CA) and EJEZIE VS. ANUWU (2008) 12 NWLR (PT. 1101) 466.
In this case, it was the duty of the Appellant who was the Attorney of the deceased Plaintiff to apply to be substituted for the deceased Plaintiff and the trial Customary Court was duty bound to substitute accordingly, upon the death of the Plaintiff. The failure of the Appellant to apply for, and the trial Customary Court to grant such substitution, rendered the proceedings conducted from the 8/12/2009, when the Plaintiff died, to judgment invalid, as same was conducted in respect of a dead person. Dead persons neither sue nor are sued.
I therefore agree with the Lower Court on this point, that the proceedings conducted by the trial Customary Court from the 8th day of December, 2009 to the delivery of judgment is invalid and null and void. This issue is hereby resolved against the Appellant.

ISSUES THREE AND FOUR
These issues being

identical, were taken together by learned Counsel on both sides. They are as follows:-
“(3) Whether the substitution of Attorney for the dead Plaintiff at the Customary Court of Appeal was sufficient in law to save the judgment of the Customary Court (Ground 3)”
“(4) Whether the Court below was right when it construed the substitution of the Attorney for the dead Plaintiff in other (sic) to save only the appeal and not the judgment appealed against. (Ground 4)”

I have already held in issue two that the trial Customary Court failed in its duty to have substituted the deceased Plaintiff with his Attorney, thereby rendering the proceedings conducted after the death of the Plaintiff null and void. The subsequent substitution of the Plaintiff with the Attorney by the Court below, to me, amounted to naught and therefore not sufficient to save or validate the proceedings including the judgment handed down by the lower Court. It is trite that it is impossible to place something on nothing and expect it to stand. These issues are therefore resolved against the Appellant.

In sum, this appeal lacks merit and is hereby dismissed

by me. However an order for retrial is hereby made for the matter to be tried at the Customary Court of Abia State by another Panel. I make no order for cost in view of the family bond between the parties.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother Andenyangtso JCA that though this Appeal is dismissed, the Suit should be retried, with living parties, since the judgment of the trial Court was delivered for a deceased party!

Appearances:

Ikenna Onyeike Esq. For Appellant(s)

I.S. Ezeudu Esq. For Respondent(s)