MRS. TITILAYO SHODEINDE & ANOR. v. OLAJIDE LAWAL
(2012)LCN/5109(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of January, 2012
CA/L/780/2008
RATIO
ON THE SUBSTITUTION OF A PARTY
It is not completely true to state that whenever a defendant is added or substituted on the application of any of the continuing parties, the suit should be deemed as having been started afresh or commenced de novo. It all depends on the stage the case has reached when the order of substitution was made. A party is known to have been substituted even after judgment was delivered but died before the hearing of the appeal. See: CENTRAL BANK OF NIGERIA V. IGWILLO (2007) 14 NWLR (Pt. 1054) 393. PER. KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. MRS. TITILAYO SHODEINDE
2. MR. OLUSOLA BABATUNDE OGUNDELU Appellant(s)
AND
OLAJIDE LAWAL Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): This is an appeal from the Ruling of Coker J. who refused to set aside the judgment of Ishola J. delivered on 18/7/2007 in Suit No.ID/540/93. The application to set aside the judgment is dated 22/10/2007 (see pages 211 – 212 of the records).
According to the appellant, the claimant (now respondent in the appeal) sued Mr. Gabriel Omotoye Okunzua for recovery of his professional fees. The said Gabriel Omotoye Okunzua died intestate on the 4/9/2006 before judgment was delivered. On 7/12/2006 the claimant filed a motion on notice dated 6/12/2006 praying:-
“for an order to join Mrs. Titilayo Shodeinde and Mr. O. B. Ogundelu in this action to substitute for Gabriel O. Okunzua – the former defendant herein (now deceased).”
With the death of Gabriel Omotoye Okunzua, his counsel Mr. A. O. Abraham of A. O. Abegunde & Co. was noted by the claimant’s counsel to have withdrawn active legal representation in the suit. On 11/12/2005 the said A. O. Abraham of counsel informed the court that Gabriel Omotoye Okunzua was dead and he had no further instructions to represent him and did not know who is going to be substituted for him. However, on 27/2/2007 the claimant’s counsel moved his motion for joinder and substitution dated 6/12/2005 aforesaid and the same was granted without opposition from A. O. Abraham of counsel. In the ruling delivered by the learned trial judge, the appellants were “substituted for the joinder defendant Mr. G. O. Okunzua who is now deceased. Necessary amendments to be made accordingly. Matter adjourned to 13/5/2007 for adoption.”
On 21/5/2007, counsel to the claimant and A. O. Abraham of counsel for the deceased defendant adopted their written addresses. And on 18/7/2007 the learned trial judge delivered judgment in favour of the claimant and made an award of N171,250.00 against the appellants. By notice of motion dated 22/10/2007, the appellants sought to set aside the judgment dated 18/7/2007 and strike out the names of the appellants as parties to the suit. The court heard and dismissed the motion. The appellants are dissatisfied with the ruling and appealed against it in an undated Notice of Appeal containing a sole ground of appeal and sought for the following reliefs: –
i. An order setting aside the decision of the lower court
ii. An order setting aside the joinder of the 2nd and 3rd defendants/appellants as representatives of the 1st defendant/appellant (deceased).
iii. An order setting aside the judgment of Honourable Justice S. O. Ishola delivered in this suit on the 18th July, 2007 (See pages 316 – 318 of the records).
An application dated 27/9/2010 seeking to strike out the 2nd appellant’s name from the appeal was granted because he was reported dead. The appellant formulated the following issue for determination:
“Whether the judgment dated 18/7/2007 was a nullity, which ought to be set aside even by the lower court, for the non observance of the mandatory provisions of Order 73 Rules 76(5) 78 and 30 of the High Court of Lagos State (Civil Procedure) Rules, 2004, which entitles the appellants to be served with the originating court processes and be heard in their own defence”
The respondent raised the following two issues for determination:
1. Whether the court which heard the motion to set aside the judgment of Ishola J. was correct when she held that the applicable rules of court as applied in the lower court of trial is Order 13 Rule 15 of the High Court of Lagos (Civil procedure) Rules 2004 where a sale (sic) defendant dies during the course of proceedings without legal representatives?
2. Whether the judge’s finding that from the affidavit evidence before the court, the two defendants who were substituted for the sole deceased defendant who died during the proceedings in the High Court before Ishola J. were properly substituted after having had notice of the motion on notice before and after the substitution, should not be upheld?
The respondent neither cross – appealed nor filed a respondent’s notice. He therefore cannot raise any issue outside of the notice of appeal filed by the appellant nor formulate more issues than the grounds of appeal can accommodate. In the consideration of this appeal, l shall confine myself to the issue raised by the appellant.
It is necessary to point out that there was no appeal against the order of substitution which the court made on 27/2/2007. Consequently the second relief contained in the notice of appeal seeking for an order setting aside the joinder of the 2nd and 3rd defendants/appellants as representatives of the 1st defendant/appellant (deceased) cannot be considered. It is outside the scope of the appeal. Moreover a joinder is not possible where a party to a suit is dead. If the action survives the deceased the only proper order of joinder is that of his estate and any identified personal or legal representative will then be substituted for the deceased person. In the affidavit in support of the motion for substitution, the two appellants were identified as the personal representatives of the deceased.
Learned counsel for the appellants centered his argument on order 13 Rules 15, 16, 18 and 30 of the Lagos state High court (Civil Procedure) Rules and submitted that the intendment of the rules is that whenever a defendant is added or substituted on the application of any of the continuing parties, the originating processes must be served on the new party, and the suit is deemed to have begun afresh once more or started de novo. He therefore argued that since the appellants were not given the opportunity to be heard in their defence, the order adjourning the suit for adoption of written addresses was made without jurisdiction and in breach of fair hearing. He further argued that the contention by the claimant that A. O. Abraham of counsel for the deceased original defendant participated in the proceedings until judgment is of no moment to the appellants’ case since the same counsel was noted to have withdrawn active legal representation in the matter with the death of the original defendant.
It is not completely true to state that whenever a defendant is added or substituted on the application of any of the continuing parties, the suit should be deemed as having been started afresh or commenced de novo. It all depends on the stage the case has reached when the order of substitution was made. A party is known to have been substituted even after judgment was delivered but died before the hearing of the appeal. See: CENTRAL BANK OF NIGERIA V. IGWILLO (2007) 14 NWLR (Pt. 1054) 393. As I pointed out earlier, it was purely a case of substitution and not joinder that was made and the appellant merely stepped into the shoes of Mr. Gabriel Omotoye (deceased) as the personal representative of his estate. It is true that it was Mr. A.O. Abraham of counsel who informed the court of the death of the defendant on 11/12/2006 after the parties had closed their respective cases and filed written addresses and further informed the court that he had no instructions who is to be substituted. By that time the motion for substitution had been filed. Mr. Abraham did not tell the court he had withdrawn his representation in the matter. Next came the 27/2/2007 when the motion was moved and granted. No objection was raised by Mr. Abraham (See page 179 of the records). On 24/4/2007 when the matter came up, the claimant and one of the parties who was substituted for Mr. Gabriel Omotoye Okunzua was present but did not say Mr. Abraham was no longer representing the defendant. (See page 185). And on 21/5/2007, Mr. Abraham was in court and adopted the written address dated 25/6/2006 which he had earlier filed on behalf of the defendant. It was recorded that the parties were all present on that date (See page 197 of the records).
From the records of proceedings, there is a presumption that Mr. A. O. Abraham continued to appear for the defence after the substitution was made and the submission by learned counsel for the appellant that the counsel withdrew active legal representation in the matter with the death of the original defendant is not borne out by the records. It is therefore a figment of the imagination by learned counsel.
The appeal is totally devoid of merit and it is hereby dismissed. The order refusing to set aside the judgment delivered on 18/7/2007 is hereby affirmed. The appeal is dismissed with costs assessed at N30,000.00 in favour of the respondent against the appellants.
SAULAWA, J.C.A.: I have had the privilege of reading the draft of the judgment, prepared and just delivered by my learned brother the Hon. Justice Akaahs, JCA. Having equally read the briefs of argument of the learned counsel to the respective parties vis-a-vis the record of appeal, as a whole, I cannot but concur with the reasoning and conclusion reached in the lead judgment, to the effect that the appeal lacks merit.
Hence, the appeal is hereby dismissed by me for being unmeritorious. The judgment of the lower court, delivered on 18/07/07, is accordingly affirmed. I abide by the consequential order of costs of N30,000 awarded in favour of the Respondent, against the Appellants.
PEMU, J.C.A.: I had the privilege of reading before now in draft, the Judgment just delivered by my brother Kumai-Bayang Akaahs JCA, and I agree with his reasoning and conclusion arrived at.
The appeal lacks merit and same is hereby dismissed.
I subscribe to the consequential order made that the Appellant shall pay costs assessed at N30,000.00 to the Respondent.
Appearances
E. I. Oboh with O. J. Oyetuga and J. BodeFor Appellant
AND
Prof. A. B. Kasunmu SAN with O. Lawal and Ayo SetanjoFor Respondent
