THE HONOURABLE (MR) JUSTICE ADEBAYO MANUWA V. NATIONAL JUDICIAL COUNCIL & ORS (2011)

THE HONOURABLE (MR) JUSTICE ADEBAYO MANUWA V. NATIONAL JUDICIAL COUNCIL & ORS

(2011)LCN/4511(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 20th day of April, 2011

CA/L/205/2002

RATIO

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 15(1) OF THE ADMINISTRATION OF ESTATES LAWS OF LAGOS STATE 2003 AS REGARDS WHETHER A PERSONAL RIGHT OF ACTION DIES WITH THE PERSON

…it is necessary to reproduce S.15 of the Administration of Estates Law Laws of Lagos State 2003 completely – “15 (1) Subject to the provisions of this section, on the death of any person after the commencement of this Law all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery. (2) Where a cause of action survives as afore said for the benefit of the estate of deceased person, the damages recoverable for the benefit of the estate of that person – (a) Shall not include any exemplary damages; (b) In the case of a breach of promise to marry shall be limited to such damage if any, to the estate of that person as flows from the breach of promise to marry; (c) Where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included. (3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless either – (a) Proceedings against him in respect of that cause of action were pending at the date of his death; or (b) The cause of action arose not earlier than three years before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out representation, (4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Law, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered. (5) The rights conferred by this Law for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accident Law, or the carriage by Air Act, 1932 of the United Kingdom and so much of this Law as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Law as relates to causes of action under the said law and the said Act as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1) of this section. (6) In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust.” Per AGBO, J.C.A.(Pp. 11-13, paras. E-F) PER RAPHAEL CHIKWE AGBO, J.C.A.

PERSONAL RIGHT OF ACTION: WHETHER AN ACTION BASED ON THE PERSONAL RIGHTS OF A DECEASED PERSON DIES WITH THE PERSON

INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF SECTION 15(1) OF THE ADMINISTRATION OF ESTATES LAWS OF LAGOS STATE 2003 AS REGARDS CIRCUMSTANCES WHERE THE PROVISION WILL NOT BE APPLICABLE

A community reading of S.15 of the Administration of Estates Law Laws of Lagos State clearly shows that the common law position is no longer applicable to Lagos. It now determines the survival of a cause of action on the death of a person in Lagos State. S. 15(1) of the Administration of Estates Laws of Lagos State 2003 is in pari materia with S. 15(1) of The Administration of Estate Law Cap 2 Laws of Bendel State 1976 which was interpreted by the Supreme Court in Ogiugo vs Ogiugo (1999) 14 NWLR (pt. 638) 283 and determined that a cause of action survives a deceased person either for or against him for the benefit of his estate excepting where the cause of action is for defamation, seduction, or inducing one spouse to leave or remain a part from the other or to claim for damages on the ground of adultery. This authority was cited with approval by Fabiyi JSC in Olufeagba vs. Abdul-Raheem (2009) 18 NWLR (pt 1172) 384. PER RAPHAEL CHIKWE AGBO, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OLU ARIWOOLA Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

THE HONOURABLE (MR) JUSTICE ADEBAYO MANUWA Appellant(s)

AND

1. NATIONAL JUDICIAL COUNCIL
2, THE HONOURABLE ATTORNEY-GENERAL OF THE LAGOS STATE OF NIGERIA (Qua The Legal Representative of the Lagos ZONE JUDICIAL SERVICE COMMISSION, And of the GOVERNOR OF LAGOS STATE)
1. MRS. F. CHIOMA ADEBAYO MANUWA
2. CHIEF LADI WILLIAMS (SAN)
3. MRS. AYODEJI B. AJIBOTA (NEE MANUWA)
4. MR. CHRISTOPHER PAPP ALUMONA (All Suing as the Executors of the Estate of the Honourable (Mr.) Justice Adebayo Manuwa (Deceased) Respondent(s)

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Lead Ruling): The appellant was a High Court Judge in the Lagos State Judiciary. He was dismissed by the Lagos State Government on the advice of the National Judicial Council. Dissatisfied with the said dismissal the appellant filed suit No, FHC/L/CS/58/2001 claiming of the defendants the following:
“1. Declarations to the effect that upon the just and proper construction, for their true meaning and intendment, and for their true legal effect, of the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 which regulate The Honourable Mr. Justice Adebayo Manuwa’s lawful tenure incumbent occupancy, Qua holder of the office of Honourable Judge of the High court of Lagos state, with effect from 18th July, 1996 until 12th December, 2000, (or alternatively, with effect from 18th July, 1996 until 8th December, 2000), inclusive.
(i) The Honourable Mr. Justice Adebayo Manuwa cannot lawfully be compelled to cease to hold and occupy the appointment or office of Hon. Judge of the High Court of Lagos State until he shall have attained the age of sixty-five (65) years, unless he is properly removed from such “judicial office” by the Governor of Lagos State, acting on a recommendation properly [that is to say, not prematurely] made to his Executive Office by the National Judicial Council in that behalf.
[And that]
(ii) By virtue of the decided conferment, in the Lagos State Judicial Service Commission of express constitutional competence.
“…to recommend to the National Judicial Council the removal from office of the… (Judicial officer)” of the afore-mentioned status occupied by the Hon. Mr. Justice Adebayo Manuwa immediately prior to the 8th day of December, 2000, the recommendation reputed to have made by the National Judicial Council to the Governor of Lagos State for his summary dismissal from his “judicial office”, aforesaid, in so far as the questioned recommendation was caused to issue both before, and without, the prior receipt of a first recommendation made to it by the Lagos State Judicial Service Commission in the same behalf, is ultra vires the powers of the National Judicial Council, and/or unconstitutional, and accordingly deserves t be adjudged null and void.
(In Addition/In the Alternative to (1) Above)
(2) A declaration that the National Judicial Council, in virtue of its juristic character/status as a Federal Executive Body of the Constitution of the Federal Republic of Nigeria, 1999’s establishment and creation, was, and remains, constitutionally bounden and enjoined to the due and full observance of all the usual attributes of a “fair hearing”, including, but not limited to, its obligation to abide by all the principles/tenets of “procedural propriety”/”procedural fairness”, all as judicially defined, during its examination and appraisal of matters that concerned, and potentially affected the constitutionally prescribed civil rights and obligations of The Hon. Mr. Justice Adebayo Manuwa that occurred and arose during its quasi-judicial proceedings held if any, and/or during the conduct of its other business held, or reputably held, to adjudicate over and determine the question whether or not a recommendation for his removal from his judicial office”, aforesaid, may lawfully, and justly, have been made.
(3) A consequential declaration adjudging that the failure of the National Judicial council to steadfastly, and fully, observe all the usual attributes of a “fair hearing”, including, but not limited to, its neglect to abide by all the principles of “procedural propriety”/procedural fairness” during its conduct of those quo judicial proceedings held, (if any), and/or, during the other conduct of its business which consummated its decision to make a recommendation to the Governor of Lagos state for the removal, by “summary dismissal”, of The Honourable Mr. Justice Adebayo Manuwa from his incumbent “judicial office” as an Honourable Judge of the High court of Lagos state, characterized by those instances of substantive and procedural breaches/violations of the substance and essence of a “fair hearing”/procedural propriety”/procedural fairness,, of which more precise identification particulars appear in the accompanying plaintiff’s statement delivered together with, and forming part of, the originating processes of court by which this action was commenced, render the National Judicial councils questioned proceedings, or business, and adjudication, and its ensuing recommendation for the Hon. Mr. Justice Adebayo Manuwa’s summary dismissal from “judicial office”, and the Governor of Lagos state’s purported implementation of the same (by the within-named plaintiff’s purported removal from office: unconstitutional, null, void, and of no effect, whatsoever.
(In Addition/In the Further Alternative to (3) Above)
(4) An order of certiorari directing that all proceedings and/or business, reputedly had, held and taken by the National Judicial Council, if forming any part of that Federal Executive Body’s deliberations which consummated its recommendation for the summary dismissal of the Hon. Mr. Justice Adebayo Manuwa from further occupancy of his “judicial office” aforesaid, including, but not limited to, its proceedings reputed to have been had during its meeting(s) held on 8th and 9th November, 2000, shall be removed into the Lagos Judicial Division of the Federal High Court, whereupon all the questioned proceedings and/or business, the ensuing recommendation for the Hon. Mr. Justice Adebayo Manuwa’s summary dismissal from his incumbency in the office of Honourable Judge of the High Court of Lagos State, and the purported effectuation, by The Governor of Lagos State, of the same, do and shall all be quashed, forthwith, upon the grounds more elaborately set forth in the plaintiff’s statement delivered together with, and forming part of, the originating processes of court by which this action was commenced.
(5) A consequential declaratory order adjudging and pronouncing the Hon. Mr. Justice Adebayo Manuwa to have been wrongfully/improperly/unlawfully removed from his incumbency in the office of Honourable Judge of the High Court of Lagos State in violation of the spirit and letter of the Constitution of the Federal Republic of Nigeria 1999, and further declaring him entitled not to cease to hold and occupy the ‘Judicial office” aforesaid until he shall have attained the age of sixty-five (65) years, unless he shall properly, and lawfully, have ceased to occupy such “judicial office” at any earlier time, either upon his self-elected retirement, or upon his prior removal from office in any manner specifically contemplated and prescribed by the Constitution, aforesaid.
(6) An order (of injunction) commanding and enjoining the Governor of Lagos State to authorize and permit, and further commanding and enjoining that the Governor of Lagos State shall not prevent, or inhibit, or impair, or limit or otherwise place obstruction hindrance, disability, restraint, or constraint, by any other means whatsoever, in the way of the Hon. Mr. Justice Adebayo Manuwa’s immediate restoration to reinstatement in, and resumption, of, the full status, duties, obligations, functions, powers, benefits, privileges, and perquisites of incumbency in office as an Honourable Judge of the High Court of Lagos State.”
The respondents challenged the suit at the trial court with two preliminary objections. The trial court heard the objections and struck out the suit. Dissatisfied with the decision of the Federal High Court the appellant filed this appeal on 19th January, 2002. On October 28, 2007 the appellant died. The applicants acting as executors of the Estates of the appellant on 12/5/10 filed this application seeking to substitute the deceased appellant in this appeal. The 2nd respondent has strenuously opposed this application on the ground that the action at the trial court being an action in personam it died with the appellant as actions in personam do not survive those who filed them.
In arguing this application counsel to the applicants had relied on S.15 (1) of the Administration of Estates Law CAP. 43 Laws of Lagos State 2003. To fully appreciate this provision, it is necessary to reproduce S.15 of the Administration of Estates Law Laws of Lagos State 2003 completely –
“15 (1) Subject to the provisions of this section, on the death of any person after the commencement of this Law all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate:
Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.
(2) Where a cause of action survives as afore said for the benefit of the estate of deceased person, the damages recoverable for the benefit of the estate of that person –
(a) Shall not include any exemplary damages;
(b) In the case of a breach of promise to marry shall be limited to such damage if any, to the estate of that person as flows from the breach of promise to marry;
(c) Where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.
(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless either –
(a) Proceedings against him in respect of that cause of action were pending at the date of his death; or
(b) The cause of action arose not earlier than three years before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out representation,
(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Law, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.
(5) The rights conferred by this Law for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accident Law, or the carriage by Air Act, 1932 of the United Kingdom and so much of this Law as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Law as relates to causes of action under the said law and the said Act as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1) of this section.
(6) In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust.

I agree with respondent’s counsel that under the common law, a personal right of action dies with the person. This was clearly stated by Nnaemeka – Agu JSC in Chief Joseph Odetoye Oyeyemi vs. Commissioner of Local Government Kwara State & 3 Ors (1992) 2 NWLR (pt 226) 561 at 675 where his lordship said thus “A personal right of action dies with the person. This is expressed in the latin maxim Actio Personalis Moritur Cum Persona. In other words an action based on the personal rights of a deceased person dies with the person.” See also Whyte vs. Jack (1996) 2 NWLR (pt 431) 407 at 422. However in the instant case it does seem that statute has intervened. A community reading of S.15 of the Administration of Estates Law Laws of Lagos State clearly shows that the common law position is no longer applicable to Lagos. It now determines the survival of a cause of action on the death of a person in Lagos State. S. 15(1) of the Administration of Estates Laws of Lagos State 2003 is in pari materia with S. 15(1) of The Administration of Estate Law Cap 2 Laws of Bendel State 1976 which was interpreted by the Supreme Court in Ogiugo vs Ogiugo (1999) 14 NWLR (pt. 638) 283 and determined that a cause of action survives a deceased person either for or against him for the benefit of his estate excepting where the cause of action is for deformation, seduction, or inducing one spouse to leave or remain a part from the other or to claim for damages on the ground of adultery. This authority was cited with approval by Fabiyi JSC in Olufeagba vs. Abdul-Raheem (2009) 18 NWLR (pt 1172) 384. I am bound by these decisions. It is therefore not in doubt that the cause of action survived the appellant and the estate is entitled to pursue this appeal.This application succeeds. It is hereby ordered that the appellant be substituted with the applicants Mrs. F. Chioma Adebayo Manuwa, Chief Ladi Williams (SAN), Mrs. Ayodeji B. Ajibola (Nee Manuwa) and Mr. Christopher Papp Alumona.

OLU ARIWOOLA, J.C.A.: I had the opportunity of reading the draft of the ruling just delivered by my learned brother, Agbo, JCA. I am in total agreement with the reasoning and conclusion in the said ruling. Accordingly, I too will allow the application of the Executors of the Estate of the deceased Appellant. It is allowed.

JUSTICE RITA NOSAKHARE PEMU, J.C.A.: I have had the privilege of reading in delivered by Honourable Justice R.C. Agbo JCA and I agree entirely with his reasoning and conclusions and abide by the consequential order made.
The application succeeds in its entirety.

Appearances

MRS. I. ROBINSON ADEWALE with her O. KEHINRO and U. IMOFor Appellant

AND

1. DR. DAPO OLANIPEKUN
2. O. FAPOHUNDA,
3. M. OGUNKOLADE
4. DEMOLA ADESINA
5. O. AJAYI SAN
6. O. BABALOLA (MISS)
7. D. DINAH (MISS)For Respondent