Brigadier General James Omebije Abdullahi V. Nigerian Army & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

This Application for substitution raises a novel issue of whether Applicants can be substituted for the deceased Appellant, who had a pending criminal appeal, before his death on 22/10/2014. The Applicants acknowledge that the general principle of law is that upon the death of the Accused Person, during the trial or on appeal, the proceedings terminates. But they believe that the situation they are faced with, following the death of the deceased Appellant, is unique, and a blanket application of the general principle would not be just or equitable.

It is this premise that Applicants, who are Administrators of the deceased Appellant’s Estate, filed this praying tor the following –

1. AN ORDER of this Honourable Court substituting the name of Brigadier General James Omebije Abdullahi [deceased Appellant), with that of Mrs. Elizabeth Abdullahi and Abdullahi Akoji Leroy (Administrators of the Estate of Late Brigadier General James Omebije Abdullahi), for the purpose of continuing with the prosecution of Ground No. 9 only in the Original Notice of Appeal which relates to the

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Order Made by the lower Court affecting/touching on the deceased Appellant property covered by Certificate of Occupancy No. FCT/ABU/BN.897 in the name of Lt. Col. James Omebije Abdullahi, and situate at Plot 741 cadastral, Zone B2, Durumi, District, Abuja.

2. AN ORDER granting leave to the Applicants to amend the Notice of Appeal filed on 22/5/2009 as per Schedule 1 attached to this Application, if Prayer 1 is granted.
3. AN ORDER granting leave to the Applicants to amend the Appellants Brief of Argument dated and filed on the 15/3/2012, in terms of Schedule 2 attached to this Application, if Prayer 1 above is granted
4. AN ORDER of this Honourable Court deeming the Amended Notice of Appeal and Amended Appellants Brief of Argument attached to this application as EXHIBITS 8 and 9 respectively, as having been duly filed and served on the Respondents, same having been filed separately at the Registry of this Court.

The Grounds upon which the Application is based are as follows-

(1) The Appellant (deceased) died on 22/10/2014 during the pendency of this Appeal

(2) That in addition to the challenge to the judgment

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of the lower Court affirming the deceased Appellants conviction, this Appeal challenged the propriety of the order made by the lower Court touching on the property of the Deceased covered by Certificate of Occupancy No. FCT/ABU/BN.897, as contained in Ground 9 of the Original Notice of Appeal filed on 22/5/2009.

(3) That the judgment of the lower Court which purportedly affirmed the decision of the general Court Martial as confirmed by the Army Council (the CONFIRMING Authority) directed the forfeiture of the deceaseds Appellants Landed property by way of restitution, whereas, the decision of the General Court Martial as confirmed by the Army council is that: He is to refund the sum of #33,500,000.00 (thirty three million five hundred thousand naira) only within 90 days wef date of this letter to the Nigerian Armed Forces, through HQ NACMP, failing which his personal property is to be confiscated to recover said amount”.

(4} That the Property which the Respondents purportedly confiscated to recover the said amount” of #33,500, 000 00 (thirty-three million five thousand naira) only was valued since 20/1/2005 at

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83,100,000.00 (Eighty Three Million One Hundred Thousand Naira only and the valuation report is part of the record before the lower Court

(5) That even though the Judgment of the General Court Martial ordered that the Appellant’s Property be forfeited by way of restitution to the Respondents particularly the 1st Respondent, the decision of the Confirming Authority is that the personal Property of the Appellant was to be confiscated to recover the sum of N33, 500,000.00 (thirty-three million five hundred thousand naira) only.

(6) That by Section 148 of the Armed Forces Act, the decision of the Confirming Authority overrides the Judgment of the General Court Martial.

(7) That the Deceased Appellant is survived by his wife Mrs. Elizabeth Abdullahi (the first Applicant) and five children.

(8) That the Applicants are the Administrators of the Estate of Late J. O. Abdullahi (deceased).

(9) That the widow and surviving children of the deceased Appellant have been adversely affected by the Order made by the lower Court in that, the taking over of the Property of the Deceased, as against the use of same to realise the sum due from the

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Deceased to the Respondents, deprived the Estate of the Deceased Appellant, the benefit of the value of the Property less the sum of N33, 500,000.00 only due to the Respondents upon the deceased’s Appellant’s conviction.

(10) That it is in the interest of justice to allow the substitution of the deceased Appellant with the Applicants, (Administrators of the estate of Late J. O. Abdullahi) in order to prosecute Issue No. 5 raised in the Appellant’s Brief of Argument dated and filed on 15/3/2012 (now issue 2 in the proposed amended Appellants’ Brief of Argument), which relates only to the taking over of the entire Appellant’s Property as opposed to using same to realize the sum of N33,500,000.00 only.

(11) That the Applicants and the other children of the deceased Appellant have a legal interest in the difference between the actual value of the Property taken over by the Respondents and the sum of N33,500,000.00 (thirty-three million five hundred thousand naira) only due on the Appellant’s conviction.

(12) That this Application is limited to the Applicants’ interest in the deceased’s Property, for themselves

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and on behalf of the other surviving children of the Deceased.

(13) That upon the Appellant’s conviction, all the benefits due to the Appellant and by extension, the Applicants and the other surviving Children were lost.

(14) Both the proposed Amended Notice of Appeal and Amended Appellants’ Brief will be separately filed in the Registry of this Court.

The Application is supported by a 19-paragraph Affidavit deposed to by the first Applicant, and a number of annexures, including the Certificate of Death of the deceased Appellant [Exhibit 1], and Letters of Administration issued to the two Applicants and Inventory of the property of the deceased [Exhibits 1A 1 D].

The Respondents filed a 22-paragraph Counter-Affidavit deposed to by Ndubisi Ezionye, a Legal Practitioner in the Chambers of Nwaka, Ezechukwu & Associates, the Counsel to the Respondents, wherein he averred that –

5. I verily believe that the aspect of the Appeal relating to sentencing and punishment for commission of crimes did not survive the deceased.
6. I verily believe that the neither the 1st Applicant nor her children can inherit the deceaseds criminal

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appeal to this Honourable Court or its subject matter as the deceased’s Estate.

7. I verily believe that the Applicants do not have any legally cognizable right or interest in the property known as Plot 741 Cadastral Zone B2, Durumi District, Abuja, notwithstanding the Letters of Administration recently procured by them – – – .
8. I am aware that the said property was confiscated following the confirmation of the decision of the General Court Martial by the Army Court of Appeal vide its letter of 7/4/2006 because the deceased was unable to refund the sum of N33, 500,000.00 within ninety (90) days after the said confirmation.
9. I verily believe that the said property did not form part of the estate of the deceased as at 4/12/2017 when the Applicants obtained letters of administration over same.
10. Contrary to the depositions of Applicants the deceased was never eager to comply with the Judgment of the General Court Martial as confirmed by the Army Council.
11. Deceased maintained tenants on the said property while pretending to be looking for a buyer; and even when the occupants of the premises were ejected, the deceased applied for an order of

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mandatory injunction to reinstate them.

12. The deceased in his life time had already lost the property because of his lethargy in complying with the time – frame in his Sentence, which was confirmed by the Army Council and also because he did not appeal against his sentence.
13. The said property was confiscated by the Nigerian Army in 2007 in execution of the decision of the General Court Martial as confirmed by the Army Council.
14. The sentence imposed on the deceased as confirmed by the Army Council was not appealed against by [him] to the Court of Appeal and the Court of Appeal merely affirmed the decision of the General Court Martial as affirmed by the Army Council.
15. Contrary to the depositions of the Applicants the decision of the General Court Martial as confirmed by the Army Council was not that the Respondents should sell the deceased’s personal property and deduct N33,500,000.00 from any sum of money realized and hand over the rest to the deceased.
16. The terms of confirmation of the deceased’s Sentence was that the deceased’s personal property was to be confiscated if he failed to repay the

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embezzled sum within ninety days of the confirmation of his sentence,

17. As at 24/4/2009 when the Court of Appeal delivered its Judgment, the portion of the judgment of the General Court Martial as confirmed by the Army Council which was not appealed against had already been executed and implemented as far back as 9/11/2007 to the knowledge of the deceased and the Applicants.
18. Contrary to the depositions of the Applicants the Court of Appeal did not reverse the terms of confirmation issued to the deceased by the Army Council, as the Judgment of the Court of Appeal made it clear that it was the sentence of the General Court Martial as confirmed by the Army Council that was being affirmed.
19. I verily believe that the deceased’s criminal appeal to this Honourable Court lapsed on the date of his death.
20. I verily believe that the Applicants cannot inherit and continue to prosecute the deceased’s lapsed right of appeal against the decision of the Court of Appeal.
21. I verily believe that it will be in the overriding interest of justice to refuse this Application as it has no basis in Nigerian law.

In response, the Applicants filed an 11-paragraph Further

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Affidavit deposed to by Abdulrahman Belgore, a Legal Practitioner in the Law Firm of Messrs. Y. C. Maikyau & Co., Solicitors to the Applicants, wherein he averred as follow

(3) That the legal right over the Property resided in the deceased Appellant, who died intestate on 22/10/2014. [The Re-Certification and Re-issuance of C-of-O acknowledgment and Certificate of Occupancy attached as Exhibits 10A and 10B].

(4) That contrary to the Respondents deposition in paragraphs 7 and 9 of their Counter Affidavit, the deceased Appellant’s interest over the property in question in this Application was subsisting along with this Appeal and the interest devolved on the Applicants, first as the Personal Representatives/survivors of the deceased and as Administrators of the deceased’s Estate.

(5) That I know as a fact that the order of confiscation made by the Army Council was for personal property only in order to recover the sum of N33, 500,000.00 only.

(6) That Contrary to paragraphs 10, 11 and 12, the deceased was always willing to comply with the orders of the Army Council but for forceful takeover of the property by the Respondents, and

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the Applicants as Administrators of the deceased’s Estate are equally willing to comply by the said order to the extent of recovering the actual sum of N33, 500,000.00 (Thirty-Three Million, Five Hundred Naira only).

(7) That contrary to paragraph 13 of Respondents’ Counter Affidavit, the permanent confiscation of the Deceased’s property is over and beyond the Orders of the General Court Martial (GCM) as confirmed by the Army Council.

(8) That contrary to paragraph 14 of the Respondents’ Counter Affidavit, the Applicants are before this Court due to the Order made by the Court of Appeal which reverted to the Orders of the General Court Martial (GCM) as against the confirmation Orders made by the Army Council.

(9) That I know as a fact that only this Court may sit on appeal and or review the decision of the Court of Appeal as pronounced on 24/4/2009.

(10) That it is in the interest of justice for this Hon. Court to grant this Application.

Written Addresses, as earlier ordered by this Court, were filed and adopted. However, before I go into the meat of the matter, I must say that this Application relates to the

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very narrow issue of whether Applicants can be substituted for the deceased Appellant in the peculiar circumstances of this case, therefore, any arguments touching on the merit or otherwise of the case, will be ignored.

On this score, the Applicants submitted that what stands out clearly in this Application is the injury inflicted on the Estate of the deceased Appellant by the Respondents, which has been sustained by the Order of the lower Court; that there is an obvious wrong, which cries so loud for a remedy only this Court can provide; that this Court has held in a long line of judicial authorities that wherever there is a wrong, there must be a remedy – Bello V. A.G. Oyo State (1986) 5 NWLR (Pt. 45) 828; and that there may not be an express provision for the continuation of a criminal appeal upon the Appellant’s death, but within the peculiar circumstances of this Appeal, this Court has power to allow them to continue with his appeal within the limited scope identified in this Application. Furthermore, that the Respondents have not denied the following facts –

– That the Army Council did not direct that the Real Property should be taken in place of the N33, 500,000.00.

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It was the Respondents who resorted to the Appellant’s Real Property as opposed to “his personal property” and in doing so, took and held the Appellant’s Property valued at N83,100,000.00 as at January 2005.

– That the Applicants and the persons mentioned in paragraph 7 of their Affidavit are the widow and Children of the Deceased respectively; and

– That they frustrated the effort by the Appellant and Applicants to sell the Property in order to raise the money required to satisfy the Order of the Army Council.

They argued that the Respondents have taken much more than what became due to them from the deceased Appellant by reason of his conviction; and that they have shown existence of a legal interest that can support this Application. They cited the following foreign authorities – Regina v. Rowe (1955) 1 GB 573, Hodgson v. Lakeman (1943) KB 15 and R v. Jefferies (1968) 3 ALL ER 238.

The Applicants made copious references to the decisions in those cases, which they explained, is to demonstrate that similar questions regarding the absence of specific statutory provisions to allow a continuation of an appeal in

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a situation such as in the instant Application, were also raised and considered. They further argued that notwithstanding the absence of specific provisions or Rules of Court, which allowed for the Application to continue with an appeal after the death of a convict, it was generally agreed – “that there can be cases in which injustice might result on it being established that personal representatives having interest were wholly without remedy”.

They conceded that Section 233 (5) of the Constitution (as amended) envisages that an appeal in a criminal proceeding would be at the instance of the Accused or Attorney General of a State or Federation as the case may be, and that Order 9 of the Rules of this Court made no provision for what should happen in the event of the death of an Appellant, but argued that just as in the cases cited, there is a clear injury that calls for an intervention by this Court; that they are only seeking to be allowed to continue with the Appeal only to the extent of the legal interest of heirs of the real Estate of the deceased Appellant, adversely affected by Respondents’ conduct; and that it is within the inherent powers of this Court to

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provide a remedy to redress same, ubi jus ibi remidium, citing Labode V. Otubu (2001) 7 NWLR (Pt. 712) 256 SC, and the Indian case of Bondada Gajapathy Rao V. State of Adhra Pradesh (1964) AIR 1645.

They submitted that they have made out a case warranting the exercise of this Court’s discretion in their favour by allowing them to continue the Appeal within the limited scope sought in the Application, and urged this Court to grant their prayer for substitution, and all the other reliefs sought in the Application.

The Respondents argued that with the death of the deceased Appellant, his Appeal became moribund and liable to be struck out; that this Application is not predicated on any appeal pending before this Court, and that what the Application seeks to achieve is either to transmute/convert the criminal Appeal to a Civil Appeal or turn this Court to a Court of first instance to determine the allegations of trespass/withholding of funds due or transferable to Applicants.

They submitted that before this Court can consider such an Application, the Court must be satisfied that there is a competent pending appeal on which it may exercise its

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jurisdiction having regard to the Nigerian law on the subject, therefore, this Application calls for interpretation of Section 233 (5) of the 1999 Constitution (as amended), which specifically provides as follows-

Any right of appeal to the Supreme Court from decisions of the Court of Appeal conferred by this Section shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person, or subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.

They argued that since the proceedings leading to this Application are criminal in nature, the second arm thereof is applicable, thus, the right of appeal is only available to the Accused; that it is a constitutional right that is personal

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to him, and is neither transferrable nor inheritable, that unlike the first arm thereof, the second arm does not make allowance for persons having interest in the matter; and that with this Application, the Applicants want this Court to interpret the accused person” in the said Section 233(5} of the 1999 Constitution to include the estate or legal personal representatives of a deceased accused person.

As to decisions of foreign Courts on instances where criminal appeals were continued after the death of the Appellant, the Respondents argued that Applicants have not demonstrated whether the foreign Courts were interpreting provisions of their own Constitution in pari materia with Section 233 (5) of our 1999 Constitution, which limits the right of appeal to specific class of persons or whether the decisions were based on the common law, citing Nafiu Rabiu V. State [1981] 2 NCLR 293 at 327; that to determine whether they have the right to take over the lapsed appeal recourse has to be had to provisions of the Constitution dealing with the right of appeal to the Supreme Court of Nigeria, citing Att.-Gen., Kaduna State V. Hassan [1985]2 NWLR (Part 8) 483 at 496; and that the

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deceased, as the Accused, activated the jurisdiction of this Court by his Notice of Appeal filed on 22/5/2009, but jurisdiction to hear the appeal lapsed on 22/10/2015, when he passed on, because, unlike civil appeals, there is no provision for continuation of a criminal appeal on the death of the Accused under the Constitution, the Supreme Court Act or the Supreme Court Rules.

They further argued that the implication of Applicants’ arguments is that there were two appeals being prosecuted by the deceased over his conviction: one criminal and the other civil; that if that is true, then the Application ought to have been for leave to appeal as persons interested or alternatively they would have applied to be substituted pursuant to the provision of Order 8 Rule 9 of the Supreme Court Rules; that the true position is that the Appeal before this Court has no extricable or severable civil aspect as the deceased in his life time had already lost the property because of his lethargy in complying with the time -frame in his Sentence, which was confirmed by the Army Council, and also because the deceased Appellant did not appeal against the said Sentence.<br< p=””

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Furthermore, that this Application centers on the perceived difference between confiscation and forfeiture as Applicants erroneously think that if the deceased’s property was confiscated rather than forfeited, the deceased would still continue to have an interest in the property, which they would inherit; that even if there was a difference, it was within the jurisdiction of the Court below to vary the order made by the Army Council, therefore, the complaint that the Court below had no jurisdiction to revert to the GCM’s order is not sustainable. They further submitted as follows at pages 14 – 15 of their Written Address

The Applicants want this Court to severe the “criminal aspect” of the Appeal from the purported “civil aspect” and grant them permission to continue to prosecute the latter in furtherance of their own right of appeal because they were affected by the order purportedly made by the Court of Appeal in its Judgement of 24/4/2009. But what was executed on 7/11/2007 was the Judgment of the General Court Martial [GCM], as confirmed by the Army Council, not the Judgment of the Court of Appeal, which was still

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in the future, as it were. – – – The Applicants’ grievance revolves around the execution of GCM’s Judgment as confirmed by the Army Council, not the Judgment of the Court of Appeal, which is the subject matter of the Appeal, pending before the Supreme Court. It would seem that the proper approach would have been for the Applicants to commence proceedings to vindicate their interest in the property in issue on the grounds of alleged trespass or withholding of the balance of funds accruable to them after the confiscation; rather than seeking to continue an Appeal, which abated when Appellant, who was the Accused Person died. That has always been the practice and procedure in such matters. Every appeal is founded on the Appellant’s right of appeal, just as every action is based on the Plaintiffs right of action. The Applicants have no right of appeal in the instant case.

They also argued that this Court does not have original jurisdiction to entertain complaints against execution of the Judgment of the GCM/Army Council by the Nigerian Army; that it would be more appropriate for the Applicants to approach a Court with the requisite jurisdiction to

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entertain their complaints; and that it is only at such a proper forum that the issue of presence or absence of remedy will arise, therefore, the said decision of this Court in Labode v. Otubu (supra), which commenced its journey to this Court from the High Court, is inapposite.

They further argued that the position of this Court has always been that Section 6(6) (b) of the Constitution and the maxim, ubi jus ibi remedium, do not confer jurisdiction on the Court to hear and determine a matter where no other specific provision grants such power, citing Alao V. ACB Ltd. (2000) 9 NWLR (Pt. 672) 264, Dongtoe v. C.S.C. Plateau State [2001] 9 NWLR (Pt. 717) 132; that contrary to the Applicants submissions, this position of the law in Nigeria accords with that in England and India: Courts of law are creatures of statutes (and/or Constitutions) which donate and circumscribe their jurisdictions, citing R v. Jeffries (supra); that Indian authorities cited also recognize the need for the existence of a statutory basis for substitution of parties to criminal appeals- Gajapathi Rao v. State of Adhra Pradesh (supra), and the position in Nigeria is that right of appeal to this Court is

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circumscribed by the Constitution, citing Nafiu Rabiu V. State (supra), APC V. INEC [2015] 8 NWLR (Pt. 1462) 531.

On the issue of foreign authorities, they cited A.G., Bendel State v. A.G., Fed. (1982) 3 NCLR 1 at 67, Olafisoye V. FRN [2004] 4 NWLR (Pt. 864) 580, and Inakoju V. Adeleke [2007] 2 MJSC 1, and submitted that none of the decisions of the foreign Courts cited by the Applicants dealt with any provision that is in pari materia with Section 233 (5) of the 1999 Constitution; that Nigeria operates a rigid and written constitutional arrangement, which establishes and donates jurisdiction to its superior Courts, citing Eligwe V. Okpokiri [2015] 2 NWLR (Pt. 1443) 348, Dokubo-Asari V. FRN (2007] 12 NWLR (Pt. 1048) 320, Okpe V. FAN Milk [2017] 2 NWLR (Pt. 1549) 282, where this Court noted that:

In the realm of law, sentiments or sympathy have no place. It is only law and law only that should take its course. See Ezeugo v. Ohanyere (1978) 6-7 SC 171 at 184 where Obaseki, JSC, admonished thus: ‘Sentiments command no place in judicial deliberations for if it did, our task would be infinitely more difficult and less beneficial to the society.

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The Applicants argued in their Reply on Points of Law that the issue of whether the deceased Appellant appealed against the sentence is no longer material, since there is no attempt to contest his conviction and the Order for the refund; that this Application only addresses the existence of a binding decision of the Court of Appeal, which effectively reverted to the sentence as pronounced by the GCM, as opposed to the terms of the confirming authority – Army Council; that upon its finding that he did not appeal against the sentence, and having affirmed his conviction as confirmed by the Army Council, the only option open to the Court of Appeal was to give full effect to the terms of the decision of the Army Council; and that it is failure to do so that gave rise to Ground 9 in the Notice of Appeal, which is the only ground that this Application seeks to pursue.

As to the Respondents’ arguments touching on the issue of jurisdiction, they submitted that this is an affront to the powers of this Court, to say the least; that it is tantamount to saying that having taken over the deceased Appellant’s property before the Judgment of the Court of Appeal,

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Respondents can have more than what the Judgment prescribed whilst the Personal Representatives of the deceased are left with no option but to helplessly watch them cart away over three times the value of the refund due from the deceased Appellant; that the Court of Appeal’s decision, which varied the Army Council’s decision, forms part and parcel of its decision that is subject only to the appellate jurisdiction of this Court, which has been invoked; that it is not for Respondents to pick and choose what part of its decision is valid or not, nor for the Applicants to choose what part of the decision it considers relevant, since the law is settled that the decision of the Court is binding on the Parties until it is set aside by the higher Court on Appeal, citing Adejobi V. State (2011) 12 NWLR (PT, 1261) 347.

They had a lot more to say in their 12-page Reply on Points of Law but I am walking a tightrope here; this is an Application for substitution, and the law frowns seriously on a Court taking on substantive issues fit only for the appeal, when hearing interlocutory applications. In other words, care must be taken to avoid making observations in

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its Ruling on that application, which might appear to pre-judge the main issue in the proceedings relative to the said application see Mortune V. Gambo (1979) LPELR-1913(SC) and Buremoh V. Akande (2017) LPELR-41565(SC), wherein M. D. Muhammad, JSC, aptly observe –

A Court must avoid the determination of a substantive issue at the interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues before the Court. Interlocutory applications – – must remain the handmaid and aid that enable the Court reach the ultimate goal of doing substantial justice between the Parties in the real issues in litigation between Parties.

As far as this Application is concerned, my own take is – the less said the better, and to set the ground rules for proceeding, I must restate that the Applicants have made it very clear that they do not wish to continue the Appeal as regards “the personal punishment of the deceased Appellant”. They wish to continue the Appeal that has to do with his estate, to protect their rights as successors and Administrators of the estate of the deceased Appellant; and nothing more.

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They submitted in their Reply that the proposition by the Respondents that they should have approached a trial Court since the Judgment of the GCM has already been executed ignores the fact that Court of Appeal has already made an order of forfeiture by way of restitution, which cannot be varied, or in any manner be ignored or set aside by any Court lower than Court of Appeal; and that the only option open to them is to continue the Appeal merely for the purpose of dealing with the Court of Appeal’s resort to the terms of the GMC.

They further argued that the Respondents’ position that they should be allowed to keep the property because this is a Criminal Appeal and it has never been allowed to continue in this country, is clear injustice and this Court would provide remedy to address the injury to them as the Personal Representatives of the Deceased Appellant; and in urging this Court dismiss the said contention, they drew this Court’s attention to the “notorious obiter of his noble Lordship, LORD DENNING in Parker v. Parker (1954) 15 ALL ER at 22″, as follows

What is the argument on the other side Only this,

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that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.

I have weighed every angle of the arguments for and against this Application, and I find myself leaning towards the position advanced by the Applicants. Yes, with regard to criminal cases, prosecution ceases with the death of an accused, which goes without saying, since no sentence can be passed on the accused, who is already dead. To put it in clear perspective, in a civil trial, if the Plaintiff or Defendant dies, their estate would usually continue. So, if the Plaintiff dies, the beneficiaries and heirs to the Plaintiff’s estate inherit the lawsuit, and they may choose to continue to press for damages, which becomes their property.

Similarly, when a Defendant dies during a civil lawsuit, his estate may be forced to defend the Suit in order to prevent a Judgment that is detrimental to the case, and the estate is, therefore, substituted for the deceased Defendant.

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In a criminal trial, there is no Plaintiff, and that role is taken by the State, which cannot die. If the accused or defendant dies, that is the end of the case. In this case, the deceased Appellant died after he filed an Appeal in this Court, wherein he raised the complaint in the said Ground 9 of his Grounds of Appeal.

The Applicants’ contention is that their interest in his estate survived the death of the deceased Appellant, and they are, therefore, praying this Court to substitute them, as Appellants, to prosecute the Appeal on the narrow compass of the complaint in the said Ground 9 of the Grounds of Appeal, which is that:

The Court of Appeal acted without jurisdiction when it state (sic) that: –

“The decision and order of forfeiture by way of restitution, made by the GCM as confirmed by the Army Council, at its sitting on 5th April 2006 and conveyed to the Appellant by the letter dated 7th April 2006, are according affirmed”.

Whereas there was no confirmation by the Army Council in its sitting of 5th April 2006, conveyed in the letter of 7th April 2006, of the Order for the forfeiture of the Appellant’s landed property situated at Durumi District, Phase 1, Abuja.

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The Applicants acknowledged that there is no statutory provision in Nigeria or any rule of Court that makes room for the substitution of a deceased Appellant, for the sole purpose of continuing with a criminal appeal, which died with him.

However, they referred this Court to some foreign authorities where the concept of doing so was contemplated, and such an application even granted.

The Respondents took exception, and argued that none of the decisions of the foreign Courts relied upon by the Applicants dealt with any provision in pari materia with or even remotely similar to Section 233 (5) of our Constitution.

The Applicants, however, countered in their Reply on Points of Law that it is settled law that foreign authorities are of persuasive influence on this Court, particularly given the novelty of this Application, citing Egbue V. Araka (1996) 2 NWLR (Pt. 433) 688, wherein Pats- Acholonu, JCA (as he then was), said

I must state most candidly that it behoves of our Court, which shares the same heritage with some countries that owe their legal system from England to

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now and again make references to the decisions of some Judges in these countries at least with a view to understanding how they interpreted some similar questions of law posed to them. It is no relegation of our sovereign power to forage beyond our shores to explore and examine the reason for a decision and where possible appropriate some decisions in order to help in unraveling problem in our Court.

They are right; it is trite that foreign decisions are only of persuasive authority. See also Araka V. Egbue (2003) 17 NWLR (Pt. 848) 1 at 20, where Tobi, JSC, expatiated further on the use of foreign decisions in Nigerian Courts, as follows-

I should not be misunderstood as saying that foreign decisions, including Indian authorities cannot be used by this Court. No, that is not the point I am making. Foreign decisions will continue to be useful in the expansion of the frontiers of our jurisprudence but this Court cannot invoke such decisions where it thinks they are contrary to the Judgments of the Court which are correctly decided. Of course, this Court will not hesitate to use any foreign decision if it’s correct, even though contrary to our decision; if

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the Court comes to the conclusion that its decision is wrong. In such a case, this Court will, in the light of the foreign decision, overrule itself and choose to go by the foreign decision, which is correctly given. Subject to the above, the state of the law that foreign decisions are of persuasive authority will remain and for all times and forever.

So, there is nothing in our laws that says the Nigerian Courts cannot rely upon foreign decisions. However, such foreign decisions, which may be “useful in the expansion of the frontiers of our jurisprudence” Araka V. Egbue (supra), are not binding on the Nigerian Courts; they are merely of persuasive authority.

There is no case in Nigeria where an Applicant has been substituted for a deceased Appellant in a criminal appeal, but Nigeria derived its legal system from England, and Applicants cited English cases, where this was dealt with – Regina v. Rowe (supra), Hodgson v. Lakeman (supra), R. v. Jeffries (supra).

I must admit that some of the foreign authorities cited by the Applicants, are highly persuasive, and when considered along with the admonishment of Lord Denning in

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Parker v. Parker (supra) if we never do anything that has not been done before, the law will stand still, while the rest of the world moves on, I feel motivated to look beyond the shores of this Country to find some answers.

In Regina v. Rowe, the application filed was refused because the widow of the deceased only wanted to clear his name. Lord Goddard, CJ, observed:

Ivor Cylde Rowe was convicted at the Bedfordshire Quarter Sessions on a charge of false pretences and was sentenced to 18 months’ imprisonment. He was convicted on February 15. He gave notice of appeal within time on February 21 and he has since died in prison. Mr. Peter Lewis, instructed not by the prisoner, but by the prisoner’s widow, applies to be allowed to continue the appeal, but in the opinion of the Court, we cannot allow a widow or an executor or an administrator of a deceased person to appeal to this Court unless they can show a legal interest. If a person is sentenced to pay a fine and dies having appealed, or even if he dies after payment of the fine – it might be immediately afterwards- it may be that the Court would allow executors or administrators to

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appeal merely on the ground that if the conviction were quashed they could recover the fine for the benefit of the estate of the deceased which they are bound to administer. In Hodgson v. Lakeman, to which our attention was called, which was a case before the Divisional Court, but the principle would be the same, the Appellant was dead, and the Court allowed the executors to continue the appeal because there was a pecuniary interest. Supposing, as sometimes happens, a man is convicted on indictment and fine 500; the money has to be paid, and the Crown can recover that money whether he is alive or dead, for it can recover it against his estate, and, therefore, it would be an injustice if the executors were not allowed to appeal and to say that the conviction was wrong, because, if it was wrong, the money would be saved. It may be that it is artificial to say that if there is a pecuniary penalty an appeal might lie. Whereas if corporal punishment or imprisonment is imposed there cannot be an appeal, but at the same time I do not see any ground on which we can say in the present case that anybody has an interest. It may be that the widow would be very glad to have her husband’s name

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cleared, but we cannot take any notice of that sentimental interest. There is nobody affected now by the judgment of the Court because the judgment was a sentence of imprisonment and the prisoner has died. It would be a very novel step if, in these circumstances, we said that the Court would entertain an appeal for these reasons the application for leave to appeal must be refused.

In Hodgson v. Lakeman (supra), excerpts from the proceedings in Court read:

Valentine Holmes: In civil proceedings provision is made for such a position as this, but there is no such provision in criminal proceedings.

[VISCOUNT CALDECOTE C.J. There is difficulty in quashing the conviction if there is nobody alive to appeal. Is there any objection to the Court proceeding to hear the appeal as though the executors had been added as Appellants]

Holmes: The Court cannot hear counsel for a dead person, but, if the executors satisfy the Court that they have an interest in the appeal, the Court, by its inherent jurisdiction, can allow them to proceed with the appeal. That was done in Siberry v. Connolly (Short & Mellor’s Crown Office Practice p. 425).

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I concede that the executors have an interest.

VISCOUNT CALDECOTE C.J. The executors of the deceased Appellant claiming an interest in the appeal, and the Respondent not disputing that claim, we give leave to Mr. Slade to argue the appeal on behalf of the executors. The conviction will be squashed.

In R. v. Jeffries (supra), the decisions in these two cases were considered by the Court of Appeal Criminal Division of England, and it was observed therein:

We agree with LORD GODDARD’s observation that there can be cases in which injustice might result on it being established that personal representatives having a legal interest were wholly without remedy: though such cases we understand are infrequent.

In this case, the Applicants submitted that considering that this Court has held in numerous judicial decisions that wherever there is a wrong, there is a remedy-ubi jus ibi remedium, Bello V. A. G., Oyo State (supra), the injury inflicted on the estate of the deceased Appellant by the Respondents that has, apparently, been sustained by the said Order made by the Court of Appeal, “is an obvious wrong, which cries so loud for a remedy only this Court can provide”.

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As I said earlier, I am walking a tightrope in considering this Application; I cannot say that the estate of the deceased Appellant suffered a wrong at the hands of the Respondents; that is a substantive issue best left for the Appeal. However, I can say that the Applicants are entitled to be heard on the matter.

The reason is simple: there is nowhere else for the Applicants to go since the Court of Appeal already made a pronouncement on the merits of the Appeal filed by the deceased Appellant in that Court. The deceased Appellant died after filing the Appeal against the decision of the Court of Appeal in this Court. Yes, the Appeal died with the deceased Appellant, but his estate survived him, and being Administrators of the deceased Appellant’s estate, the Applicants have an interest in his estate that lives on, and which cannot be left hanging.

Hanging, in the sense that the Court of Appeal is functus officio, and they cannot go to any lower Court to complain about the wrong done to the estate. The Applicants are, therefore, between a rock and a hard place. It is the duty of this Court, which is placed above the Court of Appeal, to

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provide a remedy, and that it is to allow them air their grievance, and let this Court decide its merit. Obviously, with the arguments raised by the Parties, this is the only way to go.

It is in this regard that I grant this Application as prayed. The name of the deceased Appellant shall be substituted with that of the Applicants for the purpose of continuing with the prosecution of Ground No. 9 of the Grounds of Appeal in the Original Notice of Appeal filed on 22/5/2009. The Applicants are also granted leave to amend the said Notice of Appeal filed on 22/5/2009 and the Appellant’s Brief of Argument filed on 15/3/2012. The Amended Notice of Appeal and the Amended Appellant’s Brief of Arguments already filed are, hereby, deemed as having been duly filed and served on Respondents today- 25/5/2018. Thus, this Application filed on 11/1/2018 is granted as prayed.

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SC.433/2010(R)