PRINCE ADETUNDE OGUNSANYA & ANOR v. MUKAILA ABDULLAHI
(2016)LCN/8437(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2016
CA/L/976/08
RATIO
JURISDICTION: CAN THE COURT ASSUME JURISDICTION OVER AN ACTION COMMENCED BY A DECEASED PERSON
The question that becomes pertinent at this juncture is, whether the trial Court was right to have assumed jurisdiction on an action commenced by a deceased person, when such a person does not even exist. The issue of jurisdiction of a Court to adjudicate over a matter before it, is a threshold issue that goes to the root or foundation of adjudication. This stems from the trite position of the law that once it is discovered that a Court has no jurisdiction to adjudicate over a matter any decision/proceedings emanating from such a court regarding that matter, no matter how well rendered or conducted, is a nullity. The Court cannot exercise jurisdiction over a dead person, as does not exist any longer. On the issue of jurisdiction of the Court see MADUKOLU & ORS VS NKEMDILIM (1962) 1 ALL NLR 581; LEEDO PRESIDENTIAL MOTEL VS B.O.N. LTD & ANOR (1998) 10 NWLR (Pt.570) 353 at 390-891; MANAGEMENT ENTERPRISES LTD VS OTUNSANYA (1987) 2 NWLR (Pt.55) 179.
In MADUKOLU & ORS VS NKEMDILIM (supra) the Supreme Court highlighted the conditions precedent to a Court assuming jurisdiction. According to the Apex Court, a Court is competent to adjudicate in a matter before it only when:
i. It is properly constituted with respect to the number and qualification of its members.
ii. The subject matter of the action is within its jurisdiction.
iii. The action is initiated by due process of law.
iv. Any conditions precedent to the exercise of its jurisdiction has been fulfilled. Of importance to us at the moment is condition (iv) which require that the action must be initiated by a living person or personality to an effective enforcement against the person or party it is intended to affect. A dead person is non-existent and therefore cannot maintain an action against a living person. The Supreme Court made this condition very clear in case of RE: EGBO (2002) 10 NWLR (Pt.774) 41. At para 2 the Supreme Court held as follows:
“An action brought in the name of a dead person is incompetent. There is a existing suit in such a situation and therefore an amendment to create a suit for the first time by substituting a living person as a party is not possible.”
The learned trial Court, Ikorodu High Court, which granted the application to substitute another member of the family in person in person of Alhaji Mukaila Abdulahi for Chief Salami Oruku who was deceased, was clearly done in error in view of the decision of the Supreme Court in RE: EGBO (supra). On this position also see the Supreme Court’s cases of OKONJI VS NJOKANMA (1989) 4 NWLR (Pt.114) 161 and ATANDA VS OLARENWAJU (1988) 4 NWLR (Pt.89) 394. Also to add that a dead person cannot, and does not enjoy a locus standi to initiate or maintain a live action before the Court. See OGUNSANYA VS DADA (1990) 6 NWLR (Pt.156) 346) 13 NWLR (Pt.996) 86 at 107 paras A-B. That order made by the Court substituting a dead person who initiated the action (supposedly, is without jurisdiction for another member of the family.
It is trite that an order or decision of Court made without jurisdiction is a nullity as one cannot put something on nothing and expect it to stay there, it will surely collapse. See MACFOY VS. U.A.C. LTD (1962) AC 152 AT 160. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. PRINCE ADETUNDE OGUNSANYA
2. ENIGBOKAN ABUDU
(Principal for and on behalf of Ogbenla family & other unknown persons on the land) Appellant(s)
AND
MUKAILA ABDULLAHI
(For himself and the entire Ayonnusen Chieftaincy family) Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This appeal dated 23rd July 2007 was filed by Prince Adetunde Ogunsanya and Enigbokan Abudu on 27th July 2007 as 58th & 59 Defendants in suit No.ID/117/M/2004 where judgment was given against them together with other Defendants in that suit for possession. See page 430 – 439 of the record of appeal.
The said suit ID/117M/2004 emanated from suit No.ID/2595/92 where the Plaintiff got judgment for declaration of title against 59 Defendants and other unknown persons on the land. The Appellants herein were 58th and 59th Defendants respectively as principal for and on behalf of Ogbenla family. In that suit ID/2595/92 the trial judge, Justice S. A. Adebajo adjudged the Plaintiff to be the rightful owner of the disputed land (see page 15 of the record) and the Defendants including the Appellants herein were declared to be trespassers on the land.
The Defendants including the Appellants brought application for stay of execution of the judgment before Justice Adebajo and same was dismissed by the Honourable Justice (see pages 17-21 of the record).
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Yet dissatisfied with
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the ruling, the Appellants brought similar application for stay of execution at the Court of Appeal where same was granted conditionally. The Court of Appeal granted the Appellants a conditional one year stay to enable them expedite the prosecution of the appeal. See page 218-226 of the record of appeal. Over one year after the order of the Court of Appeal, the Appellants did nothing to prosecute the appeal only for them to bring an application for extension of the order for stay. The Plaintiff/Respondents opposed the application and their motion for extension of the stay of execution was dismissed by this Court. See page 226 of the record. Upon dismissal of the stay, the Plaintiff/Respondent attempted to execute the judgment but was informed by the Deputy Sheriff of the trial Court that though the Plaintiff had judgment for the ownership of the land there is no order for possession. This necessitated the filing of suit No.ID/117M/2001 to enable the Plaintiff/Respondent take possession of the land from the Appellants.
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The suit was instituted in the name of Salami Oruku for himself and the entire Ayonnusen Chieftaincy family. See page 1-5 of the record.
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However, having realized the demise of Chief Salami Oruku substitute him with Alhaji Mukaila Abdulahi. See page 32-3S of the record of appeal. After a careful consideration of the motion, the learned judge, who then presided over the matter, Justice Olokoba granted the application and Alhaji Mukaila Abdulahi was accordingly substituted for Chief Salami Oruku for himself and the entire Ayonnuse Chieftaincy family.
See pages 199 ? 201 of the record of appeal.
The learned trial judge there and then adjourned the matter to 17th May 2004. However, before the said return date, he was transferred from the jurisdiction and Justice Oke-Lawal took over the conduct of the case. From the sole ground contained in notice of appeal at pages 444-445, Appellant formulated the sole issue for determination.
APPELLANTS? SOLE ISSUE
“Whether a representative action commenced in the name of a named deceased person as the sole representative is competent and can grant jurisdiction to the Court to entertain the suit?”
On the other hand, the sole issue for determination formulated by the Respondent is as follows:
“Whether Alhaji Mukaila
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Abudulahi was rightly substituted for Chief Salami Oruku in a representative capacity to represent the Ayonnusen Chieftaincy family in suit ID/117M/2004.”
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In proffering argument to the sole issue for determination of the appeal, the learned counsel to the Appellants contended that at the trial Court, the deceased Plaintiff purportedly instituted an action for possession of a piece/parcel of land worth about 16 hectares after which his counsel brought an ex-parte application dated 4th of March 2004 to substitute the deceased Plaintiff in suit No.ID/117M/2004 Chief Salami Oruku for one Mukaila Abudulahi even before the supposed Defendants were served the processes in the suit. This made the Defendant’s counsel curious hence raised eyebrow as to the reason for the substitution of the parties to the action. After painstaking perusal of the processes of this suit and its sister case with suit No.ID/2592/92 whose declaratory judgment led to the institution of this suit at the trial Court. The defence counsel found out that the suit was commenced in the name of a deceased person. Meaning, the matter was commenced by a dead person “Chief Salami Oruku in
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representative capacity for those alive. The late Chief Salami Oruku who was deceased even before judgment was given in the sister case suit No. ID/2595/92 as deposed to by one Mr. Yusuff Adeleke in his counter affidavit dated 6th of November, 2003 particularly in Paragraphs 27 and 28 of the counter affidavit in pages 88 to 90 of the record of appeal. The trial Court erred in law when it allowed itself to be misled, assumed jurisdiction and ruled against the counter affidavit filed in opposition to the competency of the suit by giving judgment to the Plaintiff/Respondent and same is the basis of this appeal. The Respondent’s counsel not only succeeded in misrepresenting the issue but also misled the trial Court to give judgment in favour of the Plaintiff by stating that the substitution was done in a representative capacity as Chief Salami Oruku (the deceased) instituted the suit for himself and on behalf of the entire Ayonnusen chieftaincy family. The trial Court was misled into believing that the substitution should suffice and that it was competent to assume jurisdiction on ground that the Plaintiff instituted the suit in a representative capacity wherein
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both named and unnamed person(s) represented would suffice as a party to the suit. The assertion of the Respondent is greatly misleading because all the case law cited by the Respondent were case where the named representative were still active and does have the capacity to represent others. See DANIYAN VS IYAGIN (2002) 7 NWLR (PT 766) 346 at 357; IN RE: EGBO (2002) 10 NWLR (Pt.774) 41; OKONJI VS NJOKANMA (1989) 4 NWLR (Pt.114) 161; ATAMA VS OLANREWAJU (1988) 4 NWLR (Pt.89) 394, ATAGUBA & CO vs GURA (NIG) LTD (2005) 8 NWLR (Pt.927) 429 at 433. ATTORNEY GENERAL FEDERATION VS ANPP (2003) 18 NWLR (Pt.851) 182 AT 189; EMEZI VS. OSUAGWU (2005) 12 NWLR (PT.939) 340 AT 346; DANIYAN VS. IYAGIN (2002) 7 NWLR (PT.766) 346 AT 355; EZENWOSU VS. NGONADI (1988) 3 NWLR (PT.81) 163 AT 165; OYEWOLE VS. LASISI (2000) 14 NWLR (PT.687) 342; ADELEKAN VS. ECU LINE NV (2006) 12 NWLR (PT.933) 33. The bottom line is that where an appeal is incompetent because it was brought in the name of the dead person, such an appeal, cannot be vivified and given life for the first time by substituting a living person as Appellant, we urge the Court to allow this appeal.
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In reply to the
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submissions of the learned counsel for the Appellants above, learned counsel for the Respondent contended that judgment was given against the Appellants herein together with other Appellants in suit No.ID/2595/92 by Justice S. A. Adebajo of Ikeja High Court on 29th July, 2001, approximately a decade ago. The Appellants herein are 58th and 59th Defendants respectively in that suit see pages 6-15 of the record of appeal. All the Defendants in that suit including the Appellants herein were adjudged as trespassers by the learned trial judge and confirmed that the Plaintiffs then represented by Chief Salami Oruku were the rightful owners of a piece of parcel of land measuring approximately 15.999 Hectares as claimed by the Plaintiffs in their writ of summons. See Paragraph 4 at page 11 of the judgment (page 15 of the record of appeal.) The declaratory judgment which gave judgment to the Plaintiffs/Respondents could not be executed as it does not contain order for possession. There will still be a need for consequential order that will enable the Respondents enjoy the benefit of the declaratory judgment hence the need to file an action for possession in suit
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No.ID/117M/2004 which is the subject matter of this appeal. The suit was filed in the name of Chief Salami Oruku in whose name the declaratory judgment was given in suit ID/2595/92. Having realised the demise of Chief Salami Oruku, an application was brought before Justice M. Olokoba of Ikorodu High Court to substitute another member of the family in person of Alhaji Mukaila Abdulahi for Chief Salami Oruku who was deceased. The application was granted and Alhaji Mukaila Abdulahi was duly substituted to represent the Ayonnusen Chieftaincy family despite the preliminary objections raised by the Appellants. The said Alhaji Mukaila Abdullah is competent to represent the family as to vest the Court with jurisdiction in suit ID/117M/2004. The relief sought is a consequential relief to actuate the judgment of the Court in suit ID/2595/92 and any member of the family can represent the interest of the family after the demise of the member of the family whose name was used to originate the action, even though as at the time of instituting the ancillary or consequential relief the said Chief Salami Oruku has died. See ATTORNEY GENERAL OF FEDERATION VS A.I. C. LTD (2000) 10
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NWLR (Pt.675) 298. The Respondent did not institute a fresh action for possession.
Learned counsel submitted further that, it is no doubt that an action brought in the name of a dead person is incompetent seeRe: Egbo 11 (2002) 10 NWLR page 41 at 114; DANIYAN VS YAGIN (2002) 7 NWLR page 346 at 357. In the present suit Chief Salami Oruku initiated the suit in a representative capacity for himself and the entire members of Ayonnusen family of Ikorodu and the writ of summons in suit No.ID/117M/04 clearly stated this. All other subsequent cases relied upon by the Appellants are all in applicable in the circumstance of this case.
The learned counsel to the Respondent submitted further that the order of Court allowing the substitution was contained in a ruling of Court dated 5th April, 2004. See page 199-201 of the record. There is no successful appeal against the order. See YAKUBU VS OMOLABOJE (2006) 4 M.J. S.C. page 188 at 190. Both the Court and parties are bound to obey it. See also GONZEE VS NERDC (2005) 12 M.J.S.C. 170 at 183; NDAYAKON VS JIKANTORO & ORS (2004) 8 M.J.S.C. 168 at 173. We urge the Court to dismiss the appeal.
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In their reply
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brief filed on the 13th July, 2011, deemed filed on 4th February, 2014, the Appellants’ counsel contended that the Respondent in their brief wrongly assumed that the order being sought by suit No.ID/117M/2004 was a consequential order that should flow from the initial case suit No.ID/2595/1992 being a declarative judgment granting title to the Respondent. The order or claim for which the Respondent in this instance appeal was an institution of a fresh action in suit No.ID/117M/2004, for a definite relief sought by them cannot fall within the scope of consequential order of the initial suit No. ID/2595/1992. As to what amounts to a consequential order see AWONIYI VS REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (Pt.626) 522 at 544 Paragraphs H-A; ILONA VS IDAKWO (2003) 1 NWLR (Pt.801) 311 at 367 & 387. ; NDIC VS S.B.N. PLC (2003) 1 NWLR (Pt.801) 311 at 367 & 387. We urge the Court to allow this appeal.
On the part of this Court, the submissions above are carefully examined. From the record of appeal before this Court, the chequered history of the matter which transformed into this appeal is quite simple. On page r of the record of appeal an
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originating summons for possession under Order 59 Rule 2 was filed by the present Respondent at the High Court of Lagos State at the Ikeja judicial division sworn to at High Court Registry Ikeja Lagos on the 25th day of February, 2004. The suit No.ID/117M//2004 was brought by Chief Salami Oruku for himself and entire family of Ayonnusen Chieftaincy family against Lamidi Sanni and 58 ors. The main contention of the Appellants to this appeal is that, the said originating summons which had initiated the suit (the subject of this appeal was commenced in the name of a deceased person). Meaning, the matter was commenced by a dead person “Chief Salami Oruku”. The Respondent did not dispute that the originating summons, which was the initiating process was commenced in the name of Chief Salami Oruku. However, there was a previous declaratory judgment, suit ID/2592/92 which gave judgments to the Respondents. The judgment could not be executed as it does not contain order for possession. There will still be a need for consequential order that will enable the Respondent enjoy the benefit for declaratory judgment hence the need to file an action for possession in suit
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No.ID/117M/2004 which is the subject matter of this appeal. The suit was filed in the name of Chief Salami Oruku in whose name the declaratory judgment was given in suit No.ID/2595/92. Having realized the demise of Chief Salami Oruku, an application was brought before Justice M. Olokoba of Ikorodu High Court to substitute another member of the family in the person of Alhaji Mukaila Abdulahi for Chief Salami Oruku who was deceased. The application was granted and Alhaji Mukaila Abdulahi was substituted to represent the Ayonnuse Chieftaincy family despite the preliminary objections raised by the Appellants which was overruled by the Court. This overruling of the objections raised at the trial Court, by the Appellants, constituted the crux of this appeal. The main issue in this appeal is whether an action can be initiated or commenced in the name of a deceased person. The Respondent in this appeal admitted without doubt, and the record of the appeal bears the fact that the action was commenced in the name of Chief Salami Oruku for himself and the entire family of Ayonnusen chieftaincy family, which the said Chief Salami Oruku had ceased to be a living person,
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even before the commencement of the said action. The question that becomes pertinent at this juncture is, whether the trial Court was right to have assumed jurisdiction on an action commenced by a deceased person, when such a person does not even exist. The issue of jurisdiction of a Court to adjudicate over a matter before it, is a threshold issue that goes to the root or foundation of adjudication. This stems from the trite position of the law that once it is discovered that a Court has no jurisdiction to adjudicate over a matter any decision/proceedings emanating from such a court regarding that matter, no matter how well rendered or conducted, is a nullity. The Court cannot exercise jurisdiction over a dead person, as does not exist any longer. On the issue of jurisdiction of the Court see MADUKOLU & ORS VS NKEMDILIM (1962) 1 ALL NLR 581; LEEDO PRESIDENTIAL MOTEL VS B.O.N. LTD & ANOR (1998) 10 NWLR (Pt.570) 353 at 390-891; MANAGEMENT ENTERPRISES LTD VS OTUNSANYA (1987) 2 NWLR (Pt.55) 179.
In MADUKOLU & ORS VS NKEMDILIM (supra) the Supreme Court highlighted the conditions precedent to a Court assuming jurisdiction. According to the Apex Court, a
13
Court is competent to adjudicate in a matter before it only when:
i. It is properly constituted with respect to the number and qualification of its members.
ii. The subject matter of the action is within its jurisdiction.
iii. The action is initiated by due process of law.
iv. Any conditions precedent to the exercise of its jurisdiction has been fulfilled. Of importance to us at the moment is condition (iv) which require that the action must be initiated by a living person or personality to an effective enforcement against the person or party it is intended to affect. A dead person is non-existent and therefore cannot maintain an action against a living person. The Supreme Court made this condition very clear in case of RE: EGBO (2002) 10 NWLR (Pt.774) 41. At para 2 the Supreme Court held as follows:
?An action brought in the name of a dead person is incompetent. There is a existing suit in such a situation and therefore an amendment to create a suit for the first time by substituting a living person as a party is not possible.”
The learned trial Court, Ikorodu High Court, which granted the application to substitute another
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member of the family in person in person of Alhaji Mukaila Abdulahi for Chief Salami Oruku who was deceased, was clearly done in error in view of the decision of the Supreme Court in RE: EGBO (supra). On this position also see the Supreme Court’s cases of OKONJI VS NJOKANMA (1989) 4 NWLR (Pt.114) 161 and ATANDA VS OLARENWAJU (1988) 4 NWLR (Pt.89) 394. Also to add that a dead person cannot, and does not enjoy a locus standi to initiate or maintain a live action before the Court. See OGUNSANYA VS DADA (1990) 6 NWLR (Pt.156) 346) 13 NWLR (Pt.996) 86 at 107 paras A-B. That order made by the Court substituting a dead person who initiated the action (supposedly, is without jurisdiction for another member of the family.
It is trite that an order or decision of Court made without jurisdiction is a nullity as one cannot put something on nothing and expect it to stay there, it will surely collapse. See MACFOY VS. U.A.C. LTD (1962) AC 152 AT 160. I resolve the sole issue in this appeal in favour of the Appellants.
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In the final analysis, the appeal is meritorious, and it is hereby allowed. The judgment of the High Court of Lagos State, Lagos in suit No.ID/117M/2004,
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delivered by Honourable Justice B. A. Oke Lawal on the 13th day of July, 2007 is hereby set aside by this Court.
This Court makes the following orders:
1) The originating summons for possession dated 9th February, 2004, and filed on the 25th of February, 2004, is hereby struck out by this Court.
2) Costs of N50,000.00 in favour of the Appellant.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have been privileged to have a preview of the lead judgment just delivered by my learned brother S. D. BAGE JCA.
He has adequately considered the issues in contention and I agree with the conclusion that this appeal has merit.
In that regard I also allow this appeal and I abide by the consequential orders made in the lead judgment including order as to costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I am in total agreement with the judgment just delivered by my learned brother, BAGE JCA, which judgment I had the privilege of reading in draft. There is nothing more to add as the views expressed by my learned brother represent the correct position of the law and represent my opinion in
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this appeal. I too allow the appeal and abide by the consequential orders made.
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Appearances:
Chief Taiwo Ajala with him, O. Olembe (Miss)For Appellant(s)
Z. A. Adedeji with him, J. AdejiFor Respondent(s)
Appearances
Chief Taiwo Ajala with him, O. Olembe (Miss)For Appellant
AND
Z. A. Adedeji with him, J. AdejiFor Respondent
