OMERUO ETU IROECHE v. H.R.H. EZE BONIFACE IZUOGU & ORS
(2019)LCN/12792(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of March, 2019
CA/OW/9/2017(R)
RATIO
PROCEDURE: WHERE A PARTY DIES
“The Supreme Court in a considered ruling came to the decision that since the judgment on Appeal affected the rights of the family the interest of justice demands that a member of the appellant’s family be substituted for the deceased. It was held by my Lord, Onu, JSC, at pp. 206 – 297 that: ‘A person to whom a deceased party’s interest in the subject-matter of proceedings has not been transmitted on the death of the party will not on his own motion be substituted as a party to the proceedings in the place and stead of the deceased. In the instant case, having been demonstrated that the judgment on Appeal affected the rights of the family, the interest of justice demands that a member of the Appellant’s family be put forward in the place of late Oba Jimoh Arowolo. It will be inequitable to refuse the Appellant’s Application in such circumstance.'” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
OMERUO ETU IROECHE
IROECHE IHEANYICHUKWU JOE
(APPLICANT/PARTY SEEKING TO SUBSTITUTE APPELLANT ON RECORD) Appellant(s)
AND
1. H.R.H. EZE BONIFACE IZUOGU
2. THE ATTORNEY-GENERAL OF ABIA STATE
3. THE GOVERNOR OF ABIA STATE Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling):
The Applicant/Party seeking to substitute the Appellant on record (hereafter to be simply referred to as ?the Applicant?) brought the instant motion on notice dated 6/9/2018 and filed on 14/9/2018 pursuant to Order 6 Rules 1 and 2; Order 15 Rule 2 of the Court of Appeal Rules 2016; and the inherent jurisdiction of the Court. Therein, the only specific prayer sought by the Applicant is for: –
‘An order of this Honourable Court substituting the Appellant with the Applicant as now the Appellant and a necessary party in the appeal.’
The motion on notice is founded on the following grounds: –
1.That the Appellant on record is now late.
2. That the reliefs sought in this appeal are not personal to the late Omeruo EtuIroeche and as such the action services (sic) irrespective of his death based on the reliefs sought.
3.That the Applicant has an interest in this suit and will be affected by whatever will be the outcome of this appeal for (sic).
In the light of the divergent positions of the Applicant on the one hand, and the 1st and 2nd Respondents respectively on the other hand, to the motion as evinced by the affidavits they filed, the Court ordered parties to file and exchange written addresses in the said motion on notice. They duly complied with the order.
The motion on notice, was moved on 5/12/2018 with learned counsel J.I. Analaba holding brief for K.C. Osuagwu, in urging the Court to grant the prayers therein, relying on the supporting affidavit of the said motion and adopting as well as relying on Applicant?s written address dated 8/10/2018 and filed on the same date.
Learned leading counsel, P.C. Adighije, in opposing/urging that the motion be dismissed, relied on the counter affidavit sworn to therein on 21/9/2018 by the 1st Respondent and also adopted and relied on the written address dated 1/11/2018 and filed on 2/11/2018.
In the same vein, E.Okezie, learned Solicitor-General, Abia State (hereafter to be simply referred to as ?learned S-G?) leading one other Law Officer, relied on the counter affidavit of the 2nd and 3rd Respondents sworn to on 26/11/2018 and the written address attached thereto, in urging the Court to dismiss the motion before it.
In his written address, the Applicant formulated the issue for the determination of the motion as: –
“Whether the grant of this application is not necessary for the full, complete and effectual determination of the dispute giving rise to this appeal”.
Dwelling on the issue, the Applicant having set out the reliefs sought by the deceased Appellant in the case now on appeal, and also noting that the deceased Appellant had been diligent in prosecuting this appeal (as parties have fully filled and exchanged their respective briefs of argument), in the main submitted that the grant of the motion before the Court is necessary for the full, complete, effectual and final determination of the dispute giving rise to this appeal. The Applicant submitted that the nature of the instant action given the reliefs sought therein, is ?one that can survive in-spite of the death of the Appellant on record?. That it is glaring from the said reliefs that the appeal of the deceased Appellant, is not essentially self-serving and or personal only, to the said Appellant and reference was made to the supporting affidavit of the motion at hand. Submitting that it is the reliefs claimed in a statement of claim that determine the nature of the action, the Applicant said the Rules of this Court empowers it to grant an application for substitution to replace a dead party and that even length of time cannot defeat the merit of an application for substitution.
The Applicant submitted that the cause of action in the suit appealed against is the wrongful recognition of the 1st Respondent by the 2nd and 3rd Respondents as the traditional ruler of Okwu autonomous community. That the cause of action not being just personal and or self-serving, survives the deceased Appellant going by the nature of the cause of action. Citing the case of Bintumi v. Fantami (1998) 13 NWLR (Pt. 581) Pg. 264, the Applicant submitted that the motion on notice for substitution before the Court, should be granted as it has been brought not just by the legal representative of the late Appellant, but an interested party. That, the subject matter of this appeal being a complaint for wrongful recognition of a traditional ruler, touches not only the late Appellant on record, but other members of the community, as they also have the locus standi to bring an action in this regard. That it is prudent to grant this application for the effectual and complete determination of the issue in controversy particularly to forestall the springing up of further suits on the basis that the instant appeal terminated just because of the death of the Appellant on record.
The issue formulated by the 1st Respondent (hereafter to be simply referred to as ‘the Respondent’ for the determination of the motion on notice in his written address reads: –
“Whether the cause of action in the suit at the High Court (HU/186/2001) giving rise to the appeal herein by the sole Appellant (reported dead) survives the deceased Appellant to warrant his substitution by the Applicant”
Dwelling on the issue, it is the stance of the Respondent in the main, that the motion before the Court must fail as the Applicant does not have the requisite capacity in law. It is the stance of the Respondent that the action at the lower Court was personal as the subject-matter bordered on his (Respondent’s) traditional rulership or recognition as the traditional ruler of his autonomous community. That the Applicant did not contest an election with him (Respondent) for the Ezeship stool of the community; nor did he (Applicant) go through the process(es) or procedure(s) for recognition as an Eze by the 3rd Respondent. To buttress his position, the Respondent referred to and relied on Sections 8, 9, 10 and 27 of the Traditional Rulers and Autonomous Communities Law, Cap.10 Laws of Abia State of Nigeria 1991-2000 (hereafter to be simply referred to as ?Cap. 10, Laws of Abia State?).
The Respondent posed the question as to whether if the Court granted the order sought by the Applicant, he can in the light of Sections 8, 9, 10 and 27 of Cap. 10 Laws of Abia State, be presumed to have met all the criteria for his (Applicant’s) recognition as the Eze of Okwu Olokoro autonomous community and he (Respondent) answered the question in the negative. The Respondent submitted that this is because the Applicant cannot be said to be the person recognized by law in place of the deceased Appellant. Afortiori, that the Applicant has no standing to prosecute the appeal even if substituted by the Court. That this situation further buttresses the fact that the action/suit of the deceased Appellant was purely a personal action. That it is indisputable that the deceased Appellant was inter alia seeking for the suspension or withdrawal of his (Respondent’s) recognition as the Eze of his community and to be recognized as the Eze instead of him (Respondent).
It is also the stance of the Respondent that though a party interested or an interested party in a subject-matter of a suit/action can seek to be joined either at the trial or in the appellate Court, the Applicant having not shown an interest in the result of the litigation cannot be joined in the instant appeal. That the Applicant has misconceived the state of the law in relation to substitution of a sole party or dead appellant whose interest in the subject-matter does not survive him, and the joinder of a necessary party in an action or appeal. The Respondent submitted that the Applicant’s prayer in the motion before the Court is a misconception and misunderstanding of the law. That the Applicant’s motion would have made sense and therefore sustainable or grantable if the Appellant’s action was in relation to an interest in land or on the administration of estate of a deceased or a representative action etc. That the situation in the instant case does not fit into any of these circumstances.
The 2nd and 3rd Respondents (hereafter to be simply referred to as ‘the Respondents’) in their written address equally formulated a lone issue for the determination of the instant motion and it reads thus:-
“Whether in the circumstances of this case, this appeal can survive death”.
Dwelling on the issue, the Respondents said there is nothing in the suit that led to this appeal or in the appeal itself, suggesting that the suit or the appeal, was instituted in a representative capacity. That there is also nothing in the case to suggest that the Eze stool of Okwu Olokoro belongs to the family of the deceased Appellant to warrant any member of the family of the deceased Appellant or any other person to be substituted for the deceased Appellant in this appeal, in respect of the traditional stool in dispute. It is the stance of the Respondents that this being the case, the suit at the lower Court was a personal one and cannot metamorphose into a representative one on appeal.
The Respondents also submitted that by the depositions in paragraph 3(g) of the affidavit in support of the motion before the Court, it was disclosed that the deceased Appellant was personally identified, selected and presented by the people of Okwu to the authorities as their generally acceptable Eze. That this does not suggest that the Applicant seeking to be substituted for the deceased Appellant has gone through the processes as required by Section 7(1) and (4) of the Traditional Rulers and Autonomous Communities, Law Cap.166 Volume 7 Laws of Abia State 2005.
The notification of the death of the Appellant on record in the instant appeal was first given to the registrar of this Court by the Respondent. He did this by a Notice dated 3/8/2018 and filed on 7/8/2018 brought pursuant to Order 15 Rule 1 of the Court of Appeal Rules 2016 (hereafter to be simply referred to as ?the Rules of this Court?). Therein the 1st Respondent stated that the Appellant in the instant appeal died in October, 2017 and was buried on 17/11/2017. It was after the notification of the death of the Appellant on record by the Respondent, that K.O. Osuagwu of counsel for the Appellant on record, gave notification of the death of the said Appellant to the registrar of the Court by a Notice dated 6/9/2018 and filed on 14/9/2018 equally brought pursuant to Order 15 Rule 1 of the Rules of this Court.
Therein, learned counsel stated thus: –
Sir,
This is to formally inform you of the death of Omeruo Etu Iroeche the Appellant on record in Appeal No. CA/OW/9/2017, now currently pending in Court in line with Oder (sic) 15 Rule 1, myself having truly confirmed the death.
TAKE FURTHER NOTICE that his family members as well as the other aggrieved members of the Okwu Olokoro Community who have interest on (sic) the subject matter of this appeal and whom will be affected by whatever will be the outcome of this appeal will do the needful to substitute the deceased appellant on record as the appeal survives in spite of his death.
The motion before the Court ex-facie is one seeking for the substitution of the deceased Appellant with the Applicant and the said substitution is being sought by the said Applicant on the ground that he is a necessary party for the purposes of the full, complete and effectual determination of the dispute giving rise to this appeal. I am of the considered view that the law is settled that in an application for substitution, what the Court has to consider is whether or not the action in which an applicant seeks for his substitution, survives the deceased party he is seeking to be substituted for. This much would appear to be clear having regard to the settled position of the law that a dead person has no legal personality and capacity and therefore cannot maintain an action in a trial or an appeal. That every action or case or appeal needs the proper parties to prosecute it.
This is why when an appeal has been properly entered, the appeal still subsists on the death of the appellant and only requires the substitution of a living party in order to prosecute it. This position is amply recognized by the provision of Order 15 Rule 2 of the Rules of this Court which permits for the substitution of a deceased party on appeal and empowers the substitution or addition of a new party for a deceased appellant or respondent, as the case may be. The position of the law is however clear that not every matter or appeal survives the death of a party therein. Matters or appeal dealing with issues which are personal to a deceased, matters in the nature of a personal action, do not survive the death of the party, and they usually abate on the death of the party. Hence the issue formulated for the determination of the instant motion on notice by the Respondent to wit:
“Whether the cause of action in the suit at the High Court (HU/186/2001) giving rise to the appeal herein by the sole Appellant (reported dead) survives the deceased Appellant to warrant his substitution by the Applicant
in my considered view is very apt for its determination.
For the purpose of actualizing his desire to come into the instant appeal in substitution for the deceased Appellant and as a necessary party the Applicant conceived himself to be, he (Applicant)deposed to the fact that he is a blood brother to the deceased Appellant; and after setting out the claims/reliefs sought in the instant case before the lower Court by the deceased Appellant, he (Applicant) further deposed thus: –
Paragraph 4
That I am part and parcel of the reliefs sought in this suit.
Paragraph 5
That I am an indigene of Okwu Olokoro Autonomous Community, I have been an ardent supporter of Omeruo Etu lroeche, I am one of those that were aggrieved as a result of the unlawful, kangaroo (sic) and imposition of the unpopular candidate in the person of the 1st Respondent as the traditional Ruler of my community.
Paragraph 6
That I have an interest in this appeal. I will be affected by whatever that will be the outcome.
Paragraph 7
That I want to replace/substitute my blood brother Omeruo Etu Iroeche who is now late in this appeal as an interested and a necessary party.
Paragraph 8
That although the name of Omeruo Etu Iroeche was used in this case, he is fighting this care (sic) not on a personal capacity but for himself and on behalf of the majority of Okwu Olokoro indigene (sic) who were aggrieved as a result of the imposition of the 1st Respondent on them as their traditional ruler.
Paragraph 9
That I was informed by our Lawyer K.O. Osuagwu and we verily believed him that we cannot substitute/replace our ancor(sic) man in this struggle for justice unless by the order of Court hence the reason for this application.
Paragraph 10
That the Respondents stand to lose nothing in this suit, it is to enable this case which had almost reach a concluding stage in this appeal to be fully determined.
“The appeal of the deceased Appellant having regard to the content of the case file was entered in this Court on 22/6/2017 being the date the record of appeal was deemed as having been properly compiled and transmitted to this Court by the deceased Appellant. The deceased Appellant would appear to have filed his brief of argument on 11/8/2017; while the 1st Respondent filed his brief of argument on 4/10/2017. On their own part, the Respondents on 7/11/2017 filed a motion to regularise the position of their joint brief of argument filed on the same date. It would however appear that these Respondents are yet to procure the order of this Court regularising the position of their brief of argument. Suffice, it to say that taking the time the Appellant on record died to be sometime in October 2017 as stated by the Respondent (particularly as the learned counsel for the said deceased Appellant did not give any contrary information in his notice to the registrar), it would therefore appear that the parties (at least the Appellant and Respondent) have joined issues in the instant appeal prior to the death of the Appellant on record. It would therefore also appear clear in the circumstance that the presence of the Applicant is not relevant for the purposes of distilling the issues in controversy in the instant appeal. The issues have clearly been identified and were only awaiting resolution by this Court upon the hearing of the appeal. The relevant question therefore is, whether this Court can still consider the appeal as worthy of determination given the death of the Appellant who brought the same. It would therefore appear that it can only be for the purpose of hearing the appeal that the Applicant can properly seek to be substituted for the deceased Appellant and not for the purpose of joining issues in the appeal. Issues have been joined in the briefs of argument filed by the deceased Appellant and the Respondent at least prior to the death of the Appellant on record.
Having highlighted the submissions of the parties in their written addresses, I am also of the considered view that the Applicant would appear to have deliberately introduced a factor that is not appropriate for the purpose of resolving an application for substitution such as the instant one, into this matter given ground 3 of the grounds for the application and depositions in the supporting affidavit in respect of the said ground 3. The said ground 3 is that the Applicant is seeking to have himself substituted for the deceased Appellant because he (Applicant) ‘has an interest in this suit and will be affected by whatever will be the outcome of this appeal for (sic)’.
I am of the considered view that the Applicant would appear not to appreciate the fact that substitution of parties in an appeal cannot properly be based on ‘interest in the suit and whether the party seeking for the substitution will be affected by whatever will be the outcome of the appeal.’ I am also of the considered view that if the Applicant conceived that the interest he has in the appeal and the fact that he would be affected by the outcome of the appeal, are what qualify him to be substituted for the deceased Appellant, then the said Applicant having not deemed it fit to have prosecuted the case at the lower Court as a co-plaintiff with the deceased Appellant (and which would have entitled him to have featured in the instant appeal as a co-appellant with the deceased Appellant) and thereby enabled him to have continued with the prosecution of the instant appeal as the surviving Appellant, the only way by which the Applicant can ventilate his grievance with the decision of the lower Court or pursue whatever interest he claims to have in the instant case now on appeal, is by exercising the right of appeal as a person interested donated by the 1999 Constitution of the Federal Republic of Nigeria as amended in its Section 243. The relevant provision of the Section reads: –
243(1):
Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this Constitution shall be
(a) exercisable in the case of civil proceedings at the instant of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instant of any other person having an interest in the matter.
This is particularly so, as the instant action was not instituted in a representative capacity and thereby entitling him (Applicant) as one of the persons represented by the deceased Appellant to come into the appeal by virtue of such representation.
I cannot but say that this would be without prejudice to whether or not the circumstances of the case would qualify a party such as the Applicant (who could have joined in the prosecution of a case at the trial Court but did not do so), to be allowed to appeal as an interested party. The settled position of the law is that an appeal is not a fresh action but a continuation of the case as initiated before the trial or lower Court. This being the case, it cannot properly be said that it is in an appeal already lodged by the deceased Appellant that the Applicant has interest but in the case initiated before the lower Court; hence he (Applicant) not being a party in the case can only ventilate whatever grouse he has against the decision of the lower Court that has affected whatever interest he has therein, by his own appeal brought as an interested person.
Consequently, I am also of the considered view that it is the relationship the party seeking to be substituted for a dead appellant has with the said dead appellant that would qualify the said party seeking for an order in that regard once the action of the deceased party survives him. The deceased Appellant in the instant appeal was already pursuing or exercising the right of appeal donated to him by Section 243(1) of the Constitution (supra) and the Applicant if he successfully establishes a case for his substitution for the deceased Appellant would only be pursuing the interest of the deceased Appellant in the appeal; and not his own (Applicant’s) interest in the cause of action in the matter on appeal. The Applicant cannot by an order for substitution surreptitiously seek to ventilate his own grouse with the decision of the lower Court in the instant action in which he was not a party on record and which was clearly not initiated in a representative capacity for the benefit of any class or group of persons to which the Applicant belongs.
Flowing from all that has been said is that I am of the considered view that the only basis on which the Applicant who has deposed that he is a blood brother of the deceased Appellant can continue with the prosecution of the instant appeal, is if the cause of action of the deceased Appellant survives him. The pertinent question therefore is, does the cause of action of the deceased Appellant survive him. It is ex-facie the processes filed in the instant case before the lower Court and as contained in the record particularly the judgment appealed against that the deceased Appellant is the sole plaintiff therein. It would also appear undisputable that the cause of action of the deceased Appellant is in respect of a chieftaincy matter. Ezeship of Okwu. In this regard, I consider it pertinent to re-produce some of the averments in the amended statement of claim filed in the action by the deceased Appellant and the claims/reliefs sought by the said deceased Appellant in his action as captured in the judgment of the lower Court. The averments in the amended statement of claim which I consider relevant for the purposes of the instant motion on notice are as follows: –
Paragraph 1
The claimant is the person identified, selected and presented to the people and chairman, Umuahia (South) Local Government as the traditional ruler of Okwu autonomous community of Umuahia (South) Local Government Area of Abia State.
Paragraph 2
The 1st Defendant is the person who was wrongfully recognised as the traditional ruler of Okwu autonomous community of Umuahia (South) Local Government Area of Abia State.
Paragraph 3
The 2nd Defendant is the Honourable Attorney-General and Commissioner of Justice of Abia State, on whose instructions and pieces of advice the 3rd Defendant acts.
Paragraph 4
The 3rd Defendant is the executive Government of Abia State.
Paragraph 5
The claimant avers that the cause of action in this suit is Okwu people?s mandate in him as their Eze which the 1st Defendant robbed from him through the aid of 2nd and 3rd Defendants who instead of the claimant proceeded and recognised the 1st Defendant as the Eze or traditional ruler of Okwu autonomous community of Umuahia (South) Local Government Area against the will of the Okwu people. The claimant further avers that the said 2nd and 3rd Defendants are aware of unresolved suit pending before the High Court, Umuahia as to who will be the Eze of the said community.
Paragraph 6
The claimant avers that Okwu autonomous community was before its transformation, one of the villages that make up Olokoro community and has seven hamlets then which now has (sic) become villages that make up Okwu autonomous community.
Paragraph 7
The claimant also avers that prior to the evolution of Okwu village to Okwu autonomous community, each of those even hamlets had a chairman and the claimant was then the chairman of Okwu village. Immediately Okwu transformed from village to autonomous community, the chairperson who were hamlets chairmen were elevated to village chairmen and the claimant likewise was elevated to Okwu autonomous community chairman.
Paragraph 8
The claimant avers that his position as chairman was by election and for a term of three years. All previous chairpersons who were neither incompetent nor died in office completed their three years terms.
Paragraph 13
The claimant further avers that, by the constitution of Okwu people, the selection of Eze in Okwu autonomous community is, among other things rotational. The claimant hereby pleads the said constitution of Okwu autonomous community and shall found his case upon it at the trial of this suit.
Paragraph 14
The claimant avers further that, by the provisions of Okwu autonomous community constitution, the 1st Defendant is not qualified to be their Eze resulting from the following reasons:
(a) He is a man of dubious character and have been found surfeit in the act of stealing.
(b) He was not selected by the general assembly of the people of Okwu but imposed on them.
(c) He is also underage as at the time he was recognised.
(d) He is not conversant with the various culture and tradition of Okwu.
(e) He has not participated in the various developmental activities to propel Okwu forward.
(f) He was a bachelor as at the time he was recognised and was not resident at Okwu.
Paragraph 22
The claimant continues to aver that, the recognition given to the 1st Defendant is improper, even the report written by the Executive Chairman of Umuahia (South) Local Government Area and submitted on 19/07/2001 was not considered at all. That the claimant is the man of the people and has their complete support while the 1st Defendant does not have the support of the people and for that reason there has been a massive protest of people till date.
Paragraph 23
That the claimant is contending that, this protest of the people may not stop unless the recognition of the 1st Defendant as their Eze which is an imposition on them is withdrawn forthwith. And that the 3rd Defendant was duty bound to allow the conclusion of HU/42/2001 before recognising the 1st Defendant or any other person as Eze of Okwu autonomous community.
Paragraph 24
That it is in pursuance of the foregoing that the claimant has now applied for this Honourable Court to nullify, review, overturn, set aside or quash the 3rd Defendant?s recognition of the 1st Defendant, on 24/07/2001, as Eze Of Okwu autonomous community as same was illegal and therefore null and void.’
The reliefs sought by the deceased Appellant as captured in the judgment of the lower Court (which are one relief more than those set out in the amended statement of claim) are: –
(a) A declaration that the recognition of the 1st Defendant by the 3rd Defendant, acting on the recommendation of the Commissioner for Local Government and Chieftaincy Affairs (represented herein by the 2nd Defendant) as the Eze of Okwu Autonomous Community, with full knowledge that there was an unresolved dispute over the said community’s Ezeship stool, is illegal and therefore null and void.
(b) A declaration that the 3rd Defendant is duty bound at least by the Rules of Natural Justice to wit: fair hearing to allow the Court the proper resolution of any dispute encompassing the Ezeship stool of Okwu Autonomous Community before proceeding to recognise any of the aspirants as Ezek (sic) of the said Community.
(c)An order of Court nullifying, setting aside and/or quashing the 3rd Defendant’s recognition of the 1st Defendant on 24th July, 2001 as the Eze or traditional ruler of Okwu Autonomous Community, for being illegal and therefore null and void.
(d)An order of Court restraining the 1st Defendant from parading or lending himself out as Ezek (sic) of Okwu Autonomous Community of Umuahia South Local Government Area of Abia State or performing the functions of the stool pending the proper resolution of the dispute surrounding the said Ezeship stool.
(e)An order of Court restraining the 2nd and 3rd Defendants, or either of them from dealing with the 1st Defendant as Eze of Okwu Autonomous Community of Umuahia (South) Local Government Area of Abia State or performing the functions of that stool, pending the proper resolution of the dispute shrouding the said Ezeship stool.
(f) An order of Court requiring, directing and/or mandating the 1st Defendant to return forthwith to 3rd Defendant any staff of office, or document handed to him by the said 3rd Defendant in pursuance of his wrongful recognition, on 24th July 2001 as the Eze of Okwu Autonomous Community of Umuahia South Local Government Area of Abia State.
(g) An order of Court directing the 2nd and 3rd Defendants to allow the people of Okwu Autonomous Community choose their Eze (Traditional Ruler) through proper procedure land (sic) by themselves and in accordance with the provisions of Okwu constitution and or conducting a plebiscite in Okwu community on who is the generally acceptable Traditional Ruler (Eze) or as the alternative ordering the 2nd and 3rd Defendant (sic) to recognise the claimant as the Eze (Traditional Ruler) of Okwu Autonomous Community being the person sincerely and duly identified, selected and presented by the people of Okwu to the authorities as their generally acceptable Traditional Ruler (Eze).
I have given serious consideration to the averments in the amended statement of claim particularly the ones hereinbefore re-produced and the reliefs of the deceased Appellant against the Respondents jointly and severally as captured by the lower Court in its judgment as re-produced above, and I cannot but say that it is clearly a total misapprehension of the case of the deceased Appellant for the Applicant to have contended that the said deceased Appellant’s action is not essentially self-serving and personal only to the said deceased Appellant. In my considered view, the case of the deceased Appellant, glaringly is a disputation of the propriety of the selection and consequent recognition of the Respondent as the Eze of Okwu instead of him (deceased Appellant) as he (deceased Appellant) conceived that he should be the proper person to have been recognised as the Eze because he was the popular choice as it were, of the generality of the people of Okwu who gave him the mandate to be their Eze.
I simply do not see anything that can be more self-serving or personal than the purport or purpose of the instant case instituted by the deceased Appellant which was to have himself pronounced the Eze of Okwu by the invocation of judicial process as he claims to be the rightful person to be the Eze of Okwu based on his selection for the office by the people of Okwu autonomous community. The deceased Appellant never pretended to have instituted the instant case for the benefit of the community and/or that of the Applicant who was never projected or shown by the deceased Appellant to have been equally selected by the Okwu autonomous community as a candidate for the Ezeship of the community in question and/or that any of the process or processes involving the selection of the Eze of Okwu involved the Applicant. I therefore do not see the basis for the stance of the Applicant that the cause of action of the deceased Appellant survived the said party and that he (Applicant) has any interest of his own to protect as it were, in the case brought by the deceased Appellant. I should not be misunderstood as saying that the cause of action in every chieftaincy matter cannot survive a candidate that has vied or contested for the said chieftaincy or stool.
Whether or not an action in respect of a chieftaincy survives a person who claimed to have vied for the stool in question depends on the peculiar manner in which the cause of action is conceived and presented to the Court for adjudication. It is against this backdrop that I find the submission of the Respondents to the effect that the cause of action of the deceased Appellant is personal because there is nothing therein to suggest that the stool of Okwu Olokoro belongs to the family of the deceased Appellant to warrant any member of the family of the said deceased Appellant or indeed any other person to be substituted for the deceased Appellant in the instant appeal for the purpose of the stool in contention, to be well founded. An analogy that readily comes to mind is in respect of election into elective offices. It would appear clear that no member of the electorate can properly impugn the election of a successful candidate into an elective office unless such a person was a candidate at or in the election or is the party that sponsored the person that lost out. In any event I am of the considered view that the decision of this Court in the case of IN RE: HIS ROYAL HIGHNESS, E.A. SAIKI, THE OTARU OF IGARRA (2012) LPELR 19791 (CA) sufficiently shows that it is not every cause of action in a chieftaincy dispute that survives the parties, particularly the initiator of the action. In the said case, my lord Yakubu, JCA; said thus: –
Having said so, the nagging and agitating question now, is that: Can the applicant possess an interest in a matter which was filed and decided against the deceased OkuoLuse II, in his personal capacity, an action in personam and the appeal therefrom did not survive him. Let me illustrate with some decided authorities which may provide the answer to this all-important question.
In Alhaji Jimoh Arowolo v. Jimoh Oluwole Akapo & Others (2007) All FWLR (pt. 345) 200, the facts are very straight forward, to wit: Alhaji Jimoh Arowolo was sued at the High Court of Justice, Shagamu in respect of the Onitele of Itele Chieftaincy title, in his personal capacity. He however defended the action for and on behalf of his family. The case was resolved against him, his appeal to the Court of Appeal was also dismissed. In the course of preparing his brief of argument for further Appeal, he died.
The Applicant applied by a motion on notice to the Supreme Court to be substituted for the deceased Appellant. The Supreme Court in a considered ruling came to the decision that since the judgment on Appeal affected the rights of the family the interest of justice demands that a member of the appellant’s family be substituted for the deceased. It was held by my Lord, Onu, JSC, at pp. 206 – 297 that:
“A person to whom a deceased party’s interest in the subject-matter of proceedings has not been transmitted on the death of the party will not on his own motion be substituted as a party to the proceedings in the place and stead of the deceased. In the instant case, having been demonstrated that the judgment on Appeal affected the rights of the family, the interest of justice demands that a member of the Appellant’s family be put forward in the place of late Oba Jimoh Arowolo. It will be inequitable to refuse the Appellant’s Application in such circumstance.”
In Alhaji Chief Abu Momodu & Ors. v. His Highness Alhaji A. E. Momoh and 1 Or. (1991)2 SCNJ 15: The Plaintiffs/Appellants had sued the respondents for the deposition of the 1st appellant by the 1st respondent from the former’s chieftaincy position of Aaudu of Iyekhei, as not being in accordance with the Iyekhei Customary Law and practice. During the pendency of the Appeal at the Supreme Court, the 1st Appellant died. It was held amongst other things that since part of the claim revolved around the 1st Appellant’s removal which directly concerned him, his death put an end to that claim because he was personally to be the beneficiary. However, it was further held that the Appeal subsisted and survived the 1st Appellant, since some other part of the claim did not affect him but the other Appellants, who had sued in a representative capacity for themselves and on behalf of Iyekhei Community, of Auchi. And in Chief Joseph Odetoye Oyeyemi v. Commissioner for Local Government, Kwara State and 3 Ors. (1992) 2 SCNJ, 266: The Plaintiff/Appellant had claimed for a declaration that he was the recognized Bale of Oro and that the purported withdrawal of his recognition and subsequent recognition of a rival- who was the 5th defendant, was null and void. The claim succeeded in the trial High Court, but was overturned at the Court of Appeal. The plaintiff/appellant further appealed to the Supreme Court.
However, before the hearing of the Appeal, the 5th Defendant died. His brother, applied to the Supreme Court, for him to be substituted for the 5th Defendant. The Court held that the right of the 5th defendant to the Chieftaincy stool of Bale of Oro was personal to him and died with him.
The authority of Arowolo v. Akapo (supra) is very clear to the effect that if the action of the claimant is not personal to him, but for the interest of his family, his demise will not terminate the cause of action and he can be substituted with another member of his family in order to protect the interest of the family in the Chieftaincy stool. However, it was further held that if the interest of a deceased’s party in the proceedings has not been transmitted to another person, before the death of the deceased party, the person seeking to be joined as a new party cannot be substituted for the deceased party. The thread which runs through the authorities of Chief Momodu v. Alhaji Momoh (supra) and Chief Oyeyemi v. Commissioner for Local Government (supra) appears unbroken to the effect that actions which are predicated on a person’s personal right to an action, dies with him. Therefore, the rule for substitution in such cases is governed by the application of the legal maxim: action persona lis moritur cum persona ? meaning a personal right of action dies with the person.
I think that the answer to the question I posed earlier is now obvious. I am of the considered opinion that in the circumstance of this case, the applicant cannot be said to be possessed of any interest in a matter which died with the deceased OkuoLuse II. For all the foregoings (sic), I am satisfied that this Application is lacking in merit and must be dismissed. I dismiss it, accordingly. Costs of N50,000.00 is awarded to the 1st set of Respondents.
See also the decision of this Court in the case of OKUNRINJEJE V. AJIKOBI (2018) LPELR 44850 (CA) wherein my lord Ugo, JCA; dealt incisively with survival of a cause of action in a chieftaincy matter.
Flowing from all that has been said hereinbefore is that the answer to the issue formulated by the Respondent for the determination of the instant motion and which as I had earlier said is very apt, is a resounding ‘NO’.
In the final analysis, the motion on notice brought by the Applicant for him to be substituted for the dead Appellant in the instant appeal, is dismissed with N20,000.00 costs to the 1st Respondent only, and against the Applicant. The instant appeal will therefore be adjourned to a future date for the learned counsel for the deceased Appellant on record to do the needful, failing which the Respondents can bring appropriate processes or argue the processes already filed by them seeking for the termination of the same.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead ruling just delivered by my Brother AYOBODE OLUJIMI LOKULO-SODIPE JCA. I agree with his reasoning and conclusion, I also refuse the application.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading in draft the Ruling of my Learned brother A. O. LOKULO?SODIPE, JCA and I entirely agree with his reasoning and conclusions and therefore adopt same as mine. I only need to add a few words for emphasis.
The facts of this case are simple. The Appellant on record after filing this appeal died. The Applicant who claimed to be his blood brother, brought this application to be substituted in order to continue with the appeal. His motion on notice dated 6/9/2018 and filed on 14/9/2018 was brought pursuant to Orders 6 Rules 1 and 2, and 15 Rule 2 of the Rules of this Court, and under the inherent jurisdiction of the Court. The Applicant therein prays for: –
“An order of this Honourable Court substituting the Appellant with the Applicant as now the Appellant and a necessary party in the appeal.”
The motion is grounded upon the following:-
“1. That the Appellant on record is now late.
2. That the reliefs sought in this appeal are not personal to the late Omeruo Etu Iroeche and as such the action services (sic) irrespective of his death based on the reliefs brought.
3. That the Applicant has interest in this suit and will be affected by whatever will be the outcome of this appeal for (sic).”
On 5/12/2018 we heard the application wherein J. I. Analaba Esq. holding brief for K. C. Osuagwu, urged us to grant the application as prayed, while P. C. Adighije Esq. opposed the application and urged us to dismiss same.
The Applicant donated a sole issue for determination of the application thus: –
“Whether the grant of this application is not necessary for the full, complete and effectual determination of the dispute giving rise to this appeal.”
The 1st Respondent also distilled one issue for determination thus: –
“Whether the cause of action in the suit at the High Court HU/186/2001 giving rise to the appeal herein by the sole Appellant (reported dead) survives the deceased Appellant to warrant his substitution by the Applicant?”
The 2nd and 3rd Respondents equally formulated one issue for determination thus: –
“Whether in the circumstances of this case this appeal can survive death.”
The facts of this case and the above issues have adequately been marshaled out and treated by my learned brother A. O. Lokulo-Sodipe, JCA, that I only need to go straight to the point of my emphasis.
It has been held by the apex Court of the land that the general principles of the law relating to substitution is that
“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 a genuine case of death, bankruptcy, assignment, transmission or devolution of interest or liability of 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…” See IN RE: APEH & ORS (2017) LPELR-42035 (SC) 35?36 paras G – F and also EYESAN VS. SANUSI (1984) 4 SC 115 at 137.
These general principles are however subject to certain conditions such as:
(a) Whether or not the action in which the applicant seeks for his substitution survives the deceased party to be substituted for. See YAKUBU & ORS VS. BUKOLA & ORS (2014) LPELR – 22769 (CA) pp 15?16 paras F?A.
(b) Whether the deceased sued in a representative capacity.
(c) Where the deceased did not sue in a representative capacity, but the pleadings and claims show conclusively that the claim is in a representative capacity. (see OSAGANMA VS. MILITARY GOVERNOR OF EKITI STATE (2001) 4 SCNJ 30 and AROWOLO VS. AKAPO (2007) ALL FWLR (pt. 345) 200.
It is trite that a cause of action survives the deceased party when same is not personal. Otherwise the maxim “Actio Personalis moritur Cum persona” (meaning a personal action dies with the person) will apply, where the reliefs claimed by the deceased are personal to him. In such a circumstance, the action cannot survive the deceased who will solely and personally be the beneficiary of the action. See MOMODU VS. MOMOH (1991) 2 SC 1.
In the instant case the applicant has deposed inter alia in paragraphs 4 and 8 of his affidavit that he is part and parcel of the reliefs sought in this suit; he is an indigene of Okwu Olokoro Autonomous Community who has ardently supported the deceased Omeruo Etu Iroeche, and has felt aggrieved as a result of the unlawful, kangaroo manner in which the 1st Respondent was imposed as a traditional Ruler of his community; that he has an interest in the appeal and so will be affected by whatever that will be the outcome of the appeal; that he wants to replace the deceased because he was his blood brother who was fighting the cause of the majority of Okwu Olokoro Community.
However in the amended statement of claim at paragraph 1 it is averred as follows: –
“Paragraph 1
The claimant is the person identified, selected and presented to the people and chairman, Umuahia (South) Local Government as the Traditional ruler of Okwu Autonomous community of Umuahia (South) Local Government Area of Abia State.”
In paragraph 5 the deceased averred that the cause of action in the suit is the Okwu people’s mandate given to him as their Eze which the 1st Defendant robbed him of.
Paragraphs 8 and 13 are relevant which I reproduce hereunder as follows: –
“Paragraph 8
The claimant avers that his position as chairman was by election and for a term of three years. All previous chairmen who were neither incompetent nor died in office completed their three years terms.”
“Paragraph 13
The claimant further avers that, by the Constitution of Okwu people, the selection of Eze in Okwu Autonomous Community is, among other things rotational. The claimant hereby pleads the said Constitution of Okwu Autonomous Community and shall found his case upon it at the trial of this suit.”
From the averments reproduced above, it is very clear that the claims of the Appellant on record were personal. This much the Applicant has admitted in his paragraph 8 of his affidavit when he averred thus:-
“That although the name of Omeruo Etu Iroeche was used in this case, he is fighting this case (sic) not on a personal capacity but for himself and on behalf of the majority of Okwu Olokoro indigene (sic) who were aggrieved as a result of the imposition of the 1st Respondent on them as their traditional ruler.”
From the above, and for the fuller reasons given by my learned brother A. O. Lokulo-Sodipe, I too dismiss the application with N20, 000.00 cost to the Respondent only and against the Applicant. I abide by all the consequential orders made and adopt same as mine.
Appearances:
J. I. AnalabaFor Appellant(s)
P. C. Adighije with him, C.A. Anumba and W.U. Ijeomah for 1st Respondent.
E. Okezie (Solicitor-General, Abia State) with him, E.O. Ikpeamaeze (Director, Legal Service) for 2nd and 3rd Respondents.For Respondent(s)
