Daniel Ifejika V. Veronica Abiana Oputa (2001)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A.
This is an appeal against a ruling of the High Court of Anambra State of Nigeria holden at Onitsha, Coram Keazor, J. in Suit No. 0/522/95, delivered on 18th November, 1999, wherein he granted the application of Veronica Abiana Oputa and substituted her as the plaintiff in place of her late mother, Agnes Mensah, now deceased, who was the plaintiff in the said suit with no order as to costs.
In the suit of the original plaintiff (Agnes Mensah) at the court below the claim against Daniel Ifejika, then the defendant (but now the appellant) was as follows:-
“19. Wherefore plaintiff claims:-
(i) Declaration that the defendant is not entitled to maintain the borehole in his premises where same has been sited as the vibration and noise emanating therefrom constituted nuisance to the plaintiff’s occupation and use of her premises.
(ii) An injunction to restrain the defendant by himself, his servants or agents or otherwise howsoever from causing nuisance by noise or vibration to come into and about the plaintiff’s said premises during normal working hours and/or resting on weekdays and on weekends.
(iii) N50,000.00 (fifty thousand naira) damages for nuisance.”
Pleadings were duly ordered and filed in the case, and issues joined, and as a matter of fact hearing commenced, and proceeded until plaintiff closed her case, after which she died at the ripe age of 90 years. Her daughter by name Veronica Abiana Oputa, (i.e. the present respondent) therefore brought an application on notice, for her to substitute her late mother as the plaintiff in the action, so that the suit could continue to conclusion as required under Order 13 rules 1(1),2 and 5 of the High Court Rules of Anambra State, 1988. However, the said application was vigorously opposed by learned counsel for the defendant, (now appellant), who filed no counter-affidavit in his opposition but opposed only on law. Unfortunately, the argument of learned defence counsel was not summarised in the records. However, from the particulars given under his grounds of appeal at page 24 of the records, the arguments of learned counsel for defence may be summarised as follows:-
(i) The cause of action in the suit died with the plaintiff.
(ii) The cause of action in this suit being nuisance founded in tort cannot survive the victim of the wrong, but dies with her.
At the end of all the arguments the learned trial Judge, Keazor, J. came out with a 31/2 (three and a half) page considered ruling in which he overruled the objection of learned defence counsel and granted the application for substitution of the deceased plaintiff by her daughter the applicant.
The defendant being dissatisfied with that ruling has now appealed to this court on one ground of appeal from which one issue for determination was also formulated as follows:-
“Whether Veronica Abiana Oputa can in law be allowed to substitute the plaintiff on record who is deceased in the circumstances of this case.”
The defendant will hereinafter in this judgment be referred to as the “appellant.”
In response to the above issue, the plaintiff who will hereinafter, in this judgment be referred to as the respondent, also formulated only one issue as follows:-
“Whether the High Court was correct in sustaining the application for substitution brought by the respondent in the circumstances of this case.”
I should also mention that the appellant later filed a reply brief normally, I intended to reply to new points raised by the respondent in his brief. However, I must observe that in the instant case the appellant did more than reply to new points. He joined issues with almost every point canvassed by the respondent in his brief. He disputed the definition of “Estate” as contained in “Black’s Law Dictionary” as reproduced by the respondent. Learned Counsel for appellant also quarrelled with respondents’ definition of “Estate” as given under the provision of the Administration and succession (Estate of Deceased persons) Cap. 4 Laws of Anambra State, 1991, S. 3 which was in fact first cited by learned counsel for appellant himself. How can such be regarded as a fresh point of law. As if the above were not bad enough, the appellant’s counsel went out of his way to reproduce the averments in paragraphs 9, 13 and 14 of respondent’s statement of claim and began to dispute each of them with appellant’s own contention. In other words, the appellant was virtually arguing the main case, namely whether the act of appellant in merely preparing to sink a borehole in his own premises amounted to “Nuisance” or not. These in my respectful view are questions that should be canvassed before the trial court when the trial goes back there for continuation. But, as for now, what this court is concerned with is whether the learned trial Judge of the court below was right in substituting the present respondent to continue the case instituted by her late mother. The “Reply Brief” filed by the appellant herein was therefore nothing but an attempt to have the last say in the matter, and will not be adverted to any more in this judgment.
I now proceed to resolve the only controversial issue in this appeal, namely:-
“Whether the learned trial Judge was justified in allowing the present respondent (Veronica Abiana Oputa) to be substituted for her late mother (Agnes Mensah) who instituted the action.”
Arguing this issue, it was submitted on behalf of the appellant that it was not in all cases in which a sole plaintiff died that another person was allowed to substitute him or her. It was then argued that a person can only be allowed to substitute a dead plaintiff if the cause of action was such that can survive. Order 13 rule 2 of the High Court Rules of Anambra State was referred to. It was then submitted that the cause of action in the instant suit was NUISANCE, which was a tort, and therefore could not survive the plaintiff. Finally, the latin maxim “Actio personalis moritur cum persona” (meaning, “a personal action dies with the person”) was cited in support.
In conclusion, the court was urged to allow this appeal and the decision of the trial court set aside.
In reply to the above, it was submitted on behalf of the respondent as follows:-
That the main grievance of the deceased plaintiff in her suit was, inter alia, that the activities of the appellant would cause excessive noise and vibration to her house and premises.
Before going further, attention was drawn to the fact that:-
“By combined effect of Order 13 rule 1(1) and 5 of the Anambra State High Court Rules 1988. the death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives. Further, where after the commencement of an action any change or transmission of interest or liability occurs in relation to any party to a suit or any such party dies, any person interested may obtain from the court any order requisite for curing the defect or enabling or compelling proper parties to carry on the proceedings.”
It was then pointed out that the respondent by her uncontroverted affidavit at the court below was able to satisfy the court that her mother’s property, which was subject of the suit in question devolved on her on her mother’s death. The only issue outstanding was whether the cause of action survived the deceased and so enured to the respondent as admittedly the only heir at law of the deceased. Learned counsel for the respondent then submitted that from the totality of respondent’s pleadings particularly paragraph 14 and 15 it was quite clear that the complaint of respondent was about the effect of the noise and vibration of the pumping machine and borehole on the structure and safety of her house and premises and not so much on the health of respondent’s mother. Extracts were made from paragraphs 14 and 15 of the statement of claim which showed that the complaint was against the vibration and noise which make the building uninhabitable, and so constituted nuisance to her occupation and use of the premises.
It was further submitted that although nuisance and trespass were torts nevertheless they were not personal actions in that they attach to the estate of deceased plaintiffs. The Latin maxim that “actio personalis moritur cum persona” did not apply in this case. The cases of Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535; Eyesan v. Sanusi (1984) 1 SCNLR 353 at 366 and Inua v. Nta (1961) All NLR 576 were cited in support. In conclusion, this court was urged to dismiss this appeal and sustain the decision of the court below.
I have carefully considered the legal arguments of learned counsel on both sides canvassed above, and find that there is very little in dispute in this case. It is not disputed by the learned counsel on both sides that the claim of the original respondent at the court below was in nuisance. It was also not disputed that “Nuisance” is a tort. It was also not disputed that the original plaintiff was dead, and that the present respondent is her daughter and heir at law or next of kin. What is now being disputed is whether the action of respondent in Nuisance was a personal action or an action “in rem”. If it was a personal action then it must abate, and “die with the person.” But if it was not a personal action, then it cannot abate. It must survive the original plaintiff and be inheritable by whoever succeeds to her estate.
In order to say whether the action survived the original plaintiff or not, it is necessary to define precisely what is a “Nuisance” or “Action in Nuisance”. I think a good starting point is the definition given in the recent case of U.T.B. (Nig.) Ltd. v. Ozoemena (2001) 7 NWLR (pt.713) 718 at 733 E-F in which this court, per Fabiyi, J.C.A. in the lead judgment gave the definition of Nuisance as follows:
Nuisance takes place when physical injury is inflicted on the plaintiff’s property or that the ordinary use of same is materially interfered with or impaired. It is that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to the right of another, such that the law will presume resulting damage. “Whether or not anything is nuisance is to be determined not merely by an abstract consideration of the thing itself, but with reference to the locality, the duration and all the circumstances.”
Now, whether this type of claim survives a plaintiff or not and enures for the benefit of his or her successors is a question to be sought for in other decided cases. After painstaking research, I have found the following cases in which the maxim: “actio personalis moritur cum persona” was exhaustively considered both by the Court of Appeal and the Supreme Court. They are the cases of:
(1) Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535, cited by learned respondent’s counsel.
(2) Ebongo v. Uwemedimo, (1995) 8 NWLR (Pt.411) 22 C.A.
(3) Adebisi v. Saka (1995) 8 NWLR (pt.414) 475 C.A.
(4) B.O.N. Ltd. v. Muri (1998) 2 NWLR (Pt.536) 153 C.A.
Time will not allow us to digest the facts of all the above cases, so I will confine myself to at least two of them the facts of which I consider closest to our instant case.
First is the case of Mbadinuju v. Ezuka (supra) (No.1) in the above list, which was a case of trespass in which the original defendant died, after filing of pleadings and was duly substituted, by the trial court but was struck out by the Court of Appeal, as improperly joined. On further appeal to the Supreme Court, the appeal was allowed on whether an action in trespass abates on the death of either party it was held per Onu, J.S.C. at page 565 H, surnmarised under ratio 6 as follows:-
“An action for trespass to land is not such a strictly personal cause of action as to abate on the death of the deceased plaintiff since a trespass to land committed during deceased’s lifetime is an injury to the estate of the deceased, the cause of action therefore survives his death. (Inua v. Nta (1961) All NLR 576.)”
I should add here that the offences of trespass and nuisance are twin brothers; what applies to one applies to the other. As a matter of fact, the same set of facts could amount to either trespass or nuisance or both. So the Supreme Court’s ratio given above applies equally to trespass and nuisance.
The next case is the case of B.O.N. Ltd. v. Muri (supra) in which the Court of Appeal (Jas Division) per Edozie, J.C.A. in the lead judgment at page 168 E-G had the following to say:-
“On Maxim ‘Actio personalis moritur cum persona” and its application to action for defamation. The common law maxim “action personalis moritur cum persona” which means a personal action dies with the person has been modified by statute. The present position is that on the death of any person 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. But there is no survival of cause of action for defamation or seduction or for inducing one spouse to leave the other or for damages for adultery. In the instant case, where the respondent was substituted for his late father who had testified in his case before his demise, the damages awarded in favour of the respondent for defamation is unsustainable. (In Re: Aluko No.1) (1992) NWLR (Pt.223) 341 at 347 referred to.) (p.168, paras. E-G)”
Perhaps I should also add that in the case of Adebisi v. Saka (supra) the issue was whether in the circumstances of that case (which was a Chieftaincy case) the application for substitution of the dead 1st respondent should be granted by the Court of Appeal. In the course of the appeal the Court of Appeal had to consider section 15(1) of the Administration of Estate Law Cap. I. Laws of Ogun State, 1978 which provides as follows:-
“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.”
It should be noted that the Anambra State also has the Administration and Succession (Estate of deceased persons) Law Cap. 4 Laws of Anambra State, 1991 which also has provisions similar to those in S. 15(1) of the Ogun State’s Laws extracted above.
On the totality of the foregoing, it can now be said without fear of contradiction that “Nuisance” is not a personal action. It should also be noted that the case of Mbadinuju v. Ezuka (supra) decided by the Supreme Court, emanated from Anambra State. In all the cases noted above “personal actions” have been listed to include only the following:-
(a) Defamation.
(b) Seduction.
(c) Inducing one spouse to leave or remain apart from the other.
(d) Claims for damages on the ground of adultery.
These are personal actions which do not survive the parties, and Nuisance is not one of them.
On the totality of the foregoing this appeal fails and is hereby dismissed. The respondent was properly substituted in place of her late mother as the plaintiff in the suit.
Costs of this appeal is assessed at N5,000.00 (Five thousand naira) in favour of respondent.
Other Citations: (2001)LCN/0994(CA)
