In Re: Osibakoro D.otuedon (1995)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

By an application dated and filed on the 20th day of October, 1994, the applicants, Osibakoro D. Otuedon and Peter O. Egueye, applied to this court for the following orders:-

“1. Substituting the applicants for the named plaintiffs/appellants to prosecute this appeal for themselves and on behalf of the Gbolokoso people.

2. for a fresh hearing of the application dated 14th day of May, 1993.
3. dispensing with:-

(i) The filing of a fresh Notice of Appeal herein;

(ii) The compilation of a fresh Record of Appeal;

(iii) The filing of a fresh appellants’ brief.

4. treating the Notice of Appeal dated the 18th February, 1994 and filed in the Court of Appeal, Benin City as a properly filed Notice of Appeal for the purpose of this Appeal.
5. treating the appellants’ brief already filed herein as properly filed and served with effect from the date of the order to be made herein.

And for such further order or other order or orders as this Honourable Court may deem fit to make in the circumstances.”

This application is supported by a 15 paragraph affidavit sworn to by the second applicant who described himself as the Secretary to the Gbolokposo Community. A further affidavit in support of the application sworn to on the 28th October, 1994,exhibited a resolution by the Gbolokposo community authorizing the applicants to replace the named plaintiffs on record and to prosecute their appeal on behalf of the community. The named plaintiffs/appellants had, for themselves and on behalf of the Gbolokoso people in the Okpe Local Government Area of Delta State instituted an action against the defendants/respondent” for title to the “piece or parcel of land at Gbolokposo/Gbomro village” within jurisdiction, payment of all compensation in respect of the said land and injunction.

Learned counsel for the applicant”, A. Adesokan Esq. in moving this application relied on all the facts deposed to in the affidavits in support of the motion. He indicated that the three appellant on record were all dead. He explained that the 2nd and 3rd plaintiffs/appellants died between 1975 and 1983 but that the 1st plaintiff only died on the 3rd day of August, 1993. He stressed that the named plaintiffs had been prosecuting this action for themselves and as representatives of the Gbolokposo community and that the res in this action remains not withstanding the death of the named plaintiffs on record. He pointed out that before the death of the last surviving plaintiffs the appellants had filed an application dated the 14th May, 1993 in this court for:-

“(i) An order extending the time within which to apply to this Honourable Court for leave to appeal against the decision of the court of Appeal Benin Division dated 20th November, 1989 on questions of fact and of mixed law and fact.

(ii) An order granting leave to appeal against the decision of the Court of Appeal, Benin Division dated 28th November, 1989 on questions of fact and of mixed law and fact.

(iii) AN order extending the time within which to appeal against the decision of the Court of Appeal, Benin Division on questions of fact and of mixed law and fact.”

This application was granted on the 31st January, 1994, pursuant to which the appellants filed a Notice or Appeal in the Court of Appeal, Benin City on the 18th February, 1994. The appellants filed their brief of argument on the 9th June, 1994 and the same was duly served on the respondents. He contended that much expense and trouble would be saved if an order is made which would make it unnecessary to file, fresh Notice of appeal and appellants brief. Learned counsel indicated that it was necessary to reargue the appellants’ application dated the 14th May, 1993 in view of the death of the last of the plaintiffs/appellants’ representatives on the 3rd August, 1993, that is to say, before the said application was argued and granted by this court on the 31st January, 1994.

Asked whether the applicant can now apply for all the prayers they seek in view of the invalidity of the proceedings and orders or this court made on the 31st January, 1993 in the matter of the application dated the 14th May, 1993 as all the applicants had died before the said orders were purportedly made, learned counsel indicated, quite rightly in my view, that he was no more pressing for the 2nd – 5th prayers in his motion paper. He drew attention to the distinction between an action inpersonam as against an action in a representative capacity and argued that this is a proper case for the substitution of the deceased plaintiffs with the applicants. In this regard he relied on the decision or this court in Clement Ezenwosu v. Peter Ngonadi (1988) 3 NWLR (Pt.81) 163. He therefore urged the court to grant the first prayer or his application to enable the applicant prosecute their appeal for themselves and on behalf of the Gbolokposo community. He emphasised that after the death of the 2nd and 3rd plaintiffs but before the death of the 1st plaintiff on the 3rd August, 1993, the appellants had on the 14th February, 1990 filed their Notice of Appeal against the decision of the Court of Appeal, Benin City delivered on the 28th day of November, 1989, well within time as prescribed by law. He said he was relying heavily on this Notice of Appeal which, he stressed, was filed on the 14th February, 1990. He submitted that the appeal in this case was validly pending in this court before the death of the last surviving plaintiff on the said 3rd August, 1993 and he urged the court to grant the order for substitution as prayed.

Learned counsel for the 1st and 2nd defendants/respondents, Dr. Mudiaga Odje, S.A.N., in his reply submitted that this application is totally misconceived because of the invalidity of the proceedings and orders of this court made on the 31st January. 1994 at a time when there was no surviving plaintiffs/applicants. He referred to the case of Test Opebiyi v. Shittu Oshoboja and Another (1976) 9-11 SC. 195 at 200 – 201 and Obi Okonji and others v. George Njokanina and others (1989) 4 NWLR (Pt. 114) 161 at 169 – 170 and argued that there must be a competent and valid pending appeal before the appellants can be substituted with the applicants. He contended that the only Notice of Appeal in the cause was filed on the 18th February, 1994. This was as a result of the order for leave granted in error by this court on the 31st January, 1994 for extension of time within which to appeal and leave to appeal in favour of non-existent plaintiffs/appellants, all of whom had died before the order was purportedly made. He stressed that the said Notice of Appeal was filed after the death of the sole surviving 1st plaintiff. He argued that there is no cogent evidence that the 1st plaintiff filed any Notice of Appeal on the 14th February. 1990 before his death on the 3rd August, 1993. Learned Senior Advocate therefore argued that there is no valid appeal pending before this court in this case. He submitted that the plaintiffs are yet struggling to obtain leave to come on appeal before this court. He referred to the ruling of the Court of Appeal on the 12th March, 1990 at pages 545-546 of the record of appeal refusing the 1st appellant leave to appeal and submitted that the alleged Notice of Appeal dated the 14th February, 1990 at page 537 of the record of appeal is incompetent. Alternatively, he stressed that the applicants should produce the original receipt against which the alleged Notice of Appeal dated the 14th February, 1990 at page 537 of the record of appeal was filed in proof of their assertion. He urged the court to dismiss this application as unmeritorious.

Learned counsel for the 4th to 7th respondents, Kehinde Sofola Esq., S.A.N., in his own reply submitted that ill an action being prosecuted in a representative capacity, both the named and the unnamed parties are naturally interested in the action. Accordingly, where the named parties die, any of the unnamed parties may apply to the court for substitution after which the prosecution of the case or appeal may be continued with. He, too, relied on the decision in Obi Okonji und others v. George Njokanma and others. Supra, at 166 and 169. It was his submission that in-as-much as the claim is being prosecuted in a representative capacity, the application for substitution is proper in all the circumstances of this case.

With regard to the applicants prayers 2 to 5, learned Senior Advocate submitted that these are incompetent as there was no appellant on whose behalf the application was filed. He therefore urged the court to refuse those prayers.

I have given all the issues canvassed in this application a most careful consideration and it seems to me that the first point that must be stressed is that it is indisputable the plaintiffs instituted this action against the defendants/respondents in a representative capacity. The suit was filed by the named plaintiffs for themselves and on behalf of Gbolokposo community who duly authorised them so to do.

The second point that must be made is that in a representative action, both the named plaintiffs and/or defendants as the case may be and those they represent are parties to the action although the named representative plaintiffs and/or defendants are dominus litis until the suit is determined. And so, for the purpose of initiating any process in the representative action, such process must be by and in the name of the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncontermanded. See Atanda v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394, Ede v. Nwidenyi, in Re Ugadu (1988) 5 NWLR (Pt. 93) 189 and Obi Okonji v. George Njokanma (1989) 4 NWLR (Pt. 114) 161 at 169. Put differently, when an action is instituted in a representative capacity and/or against persons in a representative capacity, such an action is not only by or against the named plaintiffs or defendants but are also by and against those the named parties represent who are not stated nomine. Those represented, so long as the named parties are in court are also deemed present at the trial of the action, through their representatives. See He Galgary & Medicine Hat Land Co. Ltd. (1908) 2 Ch. 652 at 1959, Market and Co. Ltd, v. Knight Steamship Co. Ltd. (1910) 2 K.B. 1021 at 1039 and Barker v. Allanson (193) 1 K.B. 463 at4 75. They were present by representation and would be bound in law by whatever decision the court would give for or against their representatives. I will now consider the position of deceased parties to the suit.

It seems to me a matter of common sense that apart from the legal rights of administrators, executors or the personal representatives of a deceased person, a dead person ceased to have any legal personality from the moment of death and as such can neither sue nor be sued either personally or in a representative capacity. Where, however, the cause of action survives the death of a party, such action is not terminated by death. This principle also applies to an appeal. See Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 533 and Clement Ezenwosu v. Peter Ngonadi (1988) 3 NWLR (Pt. 81) 163.

The right to appeal may survive a deceased party to a cause or matter but such right must be exercised by a living person or persons. A Notice of Appeal which is filed on behalf of or in the name of a dead person is clearly incompetent and should be struck out. Where, however, all the named parties in a representative action die, the action, provided it is still maintainable, subsists on behalf or and/or against those they represent but who have not been mentioned in the proceedings nomine. I think I should add that the above legal position applies whether or not the representative action is pending before the trial or an appellate court. Such an action or appeal, as the case may be, provided it is still maintainable, will still subsist on the death of the parties but may not be prosecuted or continued with until a living person or persons, as the case may be, have been substituted for the named deceased parties to carry on the representative action. See too Obi Okonji and others v, George Njokanma (1989) 4 NWLR (Pt. 114) 161 and Tesi Opebiyi v. Shittu Oshoboja and Another (1976) 9 – 10 S.C. 195 at 200 – 201. I will now examine, as contended by learned counsel, whether or not there is a valid pending appeal before this court in this cause or matter.

The above issue is of vital importance in this application as the Notice or Appeal against any decision or judgment complained of is, without doubt, the foundation of a proper appeal. See Tukur v. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39 and Peter Odofin and Another v. Chief Agu und Another (1992) 3 NW LR (Pt. 229) 350 at 368. Thus where a Notice of Appeal is incompetent or null and void, there can be no valid appeal pending before the appellate court. And where an order of court is made granting the appellants extension of time within which to appeal and leave to appeal when there was infact no living or existing appellants or indeed, respondents to the application, such an order will be null and void and of no effect whatever. See Lazard Brothers v. Midland Bank (1932) 1 K.B. 617 at 624 C.A. Consequently there will, in such a situation, be no valid appeal pending before the appellate court in respect of which an applicant in a motion for substitution call be validly substituted for the deceased appellants or respondents, all of whom had died.

A Notice of Appeal which is filed on behalf of or in the name or a dead appellant after his death is incompetent and null and void and the court cannot be asked to amend such a notice by substituting a living person or persons in place of the dead litigants. See Clement Ezenwosu v. Peter Ngonadi, supra. It is not a mere procedural defect or irregularity that an appeal has been filed in the name or a dead person. It is a radical and fundamental error which borders on the issue of jurisdiction. Accordingly there must be a competent and pending appeal before one party may be substituted for another and in the absence of a pending appeal or suit, the issue or substitution becomes all exercise in futility as ex nihilo nihil fit. See Test Opebiyi v. Shittu Oshoboja, supra.

In the present case, learned counsel for the 1st and 2nd respondents submitted that the notice and grounds or appeal from the judgment or the Court of Appeal were only filed on the 18th February, 1994. This, he claimed, was in purported compliance with the invalid order or this court made on the 31st January, 1994 granting the deceased plaintiff/appellants extension of time within which to appeal and leave to appeal. Learned applicants counsel on the other hand contended that the appellants’ application for extension of time within which to appeal and for leave to appeal was filed ex abundatia cautela. He stated that this was because there was at all material times a competent and valid pending appeal before this court which was duly filed in the Court below on the 14th February, 1990 before the death or the last surviving plaintiff/appellant.

Pursuant to the directive or this court, learned counsel for the applicants by his letter or the 30th November, 1994 forwarded two documents to this court.

These are –

(i) Temporary receipt dated the 14th February, 1990 issued by the court or Appeal, Benin City being payment for Notice and Grounds of appeal against the decision or the Court or Appeal in question and

(ii) Original Federal Government Revenue Collector’s Receipt No S150336 dated 15th February, 1990 and issued by the Court or Appeal, Benin City in replacement of the said temporary receipt.

Following the production of these two receipts, copies of which were duly served on learned counsel for the respondents, the parties were invited for further addresses. Learned counsel were directed to address the court on the issue of whether there was a valid appeal filed by the appellants on the 14th February, 1990 as per the two receipts Exhibits PE3 and PE4 or whether the said documents as suggested by the 1st and 2nd respundents, are forgeries in which case there would be no appeal pending in the cause.

Learned leading counsel for the applicants, Chief G.O.K. Ajayi, S.A.N. who came into the matter at this stage, in a short address relied on the averments in the applicants’ further affidavit sworn to on the 8th February, 1995 to the effect that Notice of Appeal against the decision of the Court of Appeal delivered on the 28th November, 1989 was duly filed on the 14th February, 1990, that a temporary receipt, Exhibit PE3 was issued for the said filing and that the same was replaced the following day by a Federal Government official receipt, Exhibit PE4.

He submitted that the onus rested on the 1st and 2nd respondents to establish their allegation that the said receipts of the 14th and 15 February, 1990 are forgeries. He pointed out that he would have thought a clear statement from the Court of Appeal, Benin City on the authenticity or otherwise of the two receipts would settle the matter one way or the other. He submitted that in the absence of any such evidence from the Court of Appeal, this court must hold that the 1st and 2nd respondents have failed to establish the alleged forgeries. He argued that there is evidence the Notice of Appeal in issue was filed as per the relevant receipts, Exhibits PE3 and PE4 and he urged the court to uphold the applicants’ contention on the matter.

Learned counsel for the 1st and 2nd respondents, Dr. Mudiaga Odje, S.A.N. in his reply drew attention to the counter-affidavit of the 1st and 2nd respondents in which it is averred that both the temporary receipt and the original Revenue Collector’s Receipt dated the 14th and 15th February, 1990 respectively are neither true nor genuine. He buttressed his argument by reference to Exhibit A04 which is a letter of the 26th February, 1992 written by the Deputy Chief Registrar, Court of Appeal, Benin City to the Chief Registrar of the Court to the effect inter alia that the record of appeal was inadvertently forwarded to this Court and that no valid appeal was pending as alleged.

On the question of onus, he submitted that Exhibit A04 goes along way at establishing that no appeal was infact filed by the applicants in the lower court as alleged by them. He argued that if there was an appeal pending, the applicants would not have filed their application for leave to appeal which this court struck out on the 20th November, 1991 on the ground that it was incompetent as no brief in support thereof was filed. He contended that it is reasonable to conclude that the applicants had filed no appeal.

Learned counsel for the 4th and 7th respondents, Mr. Kehinde Sofola, S.A.N. in his address stressed that what has created the entire problem in this matter is the laziness of the stall of the Court of Appeal, Benin by failing to endorse on the Notice of Appeal the receipt number and date of filing. In his view there must have been a Notice of Appeal before the court filed by the applicants on the 14th February, 1990. He referred to Exhibit A04, heavily relied on by the 1st and 2nd respondents, and pointed out that the Deputy Chief Registrar, Court of Appeal. Benin based his observation on whether or not a competent appeal was pending in that court on what the 1st and 2nd respondents told him. He was frankly of the view that forgery of the receipts had not been established beyond reasonable doubt as required by law.

Chief Ajayi in his reply pointed out that the order of this court dated the 20th November, 1991, relied on by the Deputy Chief Registrar, Court of Appeal, Benin in coming to the conclusion that there was not a valid appeal pending in the matter as per his letter, Exhibit A04 had nothing to do with the filing of Notice of Appeal in the case. He stated that some of the grounds of appeal in the applicants’ Notice of Appeal filed on the 14th February, 1990 contained questions of fact and of mixed law and fact. It was his view that in order not to take any chances, he decided to obtain an order for leave to appeal against the said judgment of the Court of Appeal.

He explained that the said application for leave was filed ex abundantia cautela and did not derogate from the Notice of Appeal which was duly filed on the 14th February, 1990. He argued that no circumstantial evidence can undermine the concrete evidence of the two receipts against which the said Notice of Appeal was filed.

There can be no doubt, as was rightly observed by learned counsel for the 4th and 7th respondents, that what has raised the unnecessary dust in this matter is traceable to the insolence on the part of the staff of the Court of appeal, Benin. It was their duty to endorse on the relevant Notice of Appeal, the official receipt number and date of its filing. This basic duty they failed to perform.

It cannot be over-emphasized that the long established practice is for appropriate court officials to endorse on documents filed in Court Registries the receipt numbers against which they were filed together with the date of such filing. These endorsements ought to be made at the time of filing of such documents to ensure that suspicions of fraud or irregular filing such as have arisen in the present application are eliminated. It is hoped that this basic but essential procedural requirement shall in future be strictly complied with by all court Registries.

Turning now to the issue in controversy, it is a well established principle of law that when a court is faced with affidavits which are irreconcilably in conflict, the court in order to resolve such conflict properly should first hear oral evidence from the deponents and their witnesses, if any. See Joseph Falobi v. Elizabeth Falobi (1976) 9 and 10 SC.1 Akinsete v. Akindutire (1966) 1 All NLR 147, Eboh and others v. Oki and others (1974) 1 SC. 179 at l89, Olu-Ibukun and Another v. Olu-Ibukun (1974) 2 Sc. 41 at 48 and Uku and others v. Okumagba & others (1974) 3 Sc. 35 at 56. A close examination of the arguments presented on behalf of the parties reveals however that the issue in dispute can quite easily be resolved on grounds of law without the necessity of resorting to hearing oral evidence. I will accordingly examine the dispute between the parties against the background of the law.

The law is well settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal. it must be proved beyond reasonable doubt. See Section 138 of the Evidence Act. In other words, although the preponderance of probability may constitute sufficient ground for a verdict in civil proceedings, this general rule is subject to the statutory proposition in section 138(1) of the Evidence Act otherwise a person who alleges he was assaulted might fail to prove the assault in a criminal prosecution and yet be able to establish the same in a civil proceeding. The assault being directly in issue must be proved beyond reasonable doubt whether in a civil or criminal case. See Okuarume v. Obabokor (1966) NMLR 47, Benson Ikoku v. Enoch Oli (1962)1 SCNLR 307;( 19(2) All NLR 194, Nwobodo v. Onoh (1984) 1 SCNLR 1 and Anyah v. ANN. Ltd. (1992) 6 NWLR (Pt. 247) 319 at 333.

The applicants in the present proceedings are accused by the 1st and 2nd respondents with the criminal offence of forgery of the two receipts Exhibits PE3 and PE4 against which the Notice of Appeal in issue was filed. The burden of proving that the applicants have been guilty of this offence of forgery is clearly on the 1st and 2nd respondents who assert the affirmative. As I have already observed, they must, to succeed, establish their allegation beyond all reasonable doubt as required in criminal law notwithstanding the fact that the commission of the offence has arisen in a civil proceeding.

Learned counsel for the 1st and 2nd respondents relied heavily on the letter Exhibit A03 in proof of the allegation of forgery in issue. I think it will be necessary to produce this letter as follows:-

“The Chief Registrar,

Supreme Court,

Lagos.

Sir, CA/B/295/86

EGHOLOGBIM OLETIE & 2 0RS

AND

AMBROSE OLUGHOR & ANOR

With reference to our letter No. CA/B/295/86/T/1/1 dated 9th December, 1991, we have just been informed and discovered that Ten certified true copies of the Record of proceedings and the following documents:

(a) The file used by the lower Court

(b) The file used by this Honourable Court

(c) The Exhibits as contained in the Index of the reference have been forwarded to the Court inadvertently.

As a result, you have given the matter Supreme Court No. SC. 17/1992 where there is no valid appeal pending in the matter.

This fact was revealed when the order of the Supreme Court dated 20th day of November, 1991 was shown to us by the defendant/respondents. A photocopy of the said order is hereby attached for your perusal.

In the light of the above, you may cancel the matter from the Cause List, if the information given above is the true position. You should also allow us to withdraw the said records or leave them in abeyance.

Yours faithfully ,

(Sgd.)

S.F.Ogunbodede

Deputy Chief Registrar.”

In the first place, it is crystal clear that the Deputy Chief Registrar, Court of Appeal, Benin based his conclusion that there was not a valid appeal pending in the cause on what the 1st and 2nd respondents told him. In the second place, the older of the 20th November, 1991 relied upon by the said Deputy Chief Registrar for his decision had nothing whatsoever to do with whether or not a Notice of appeal was filed on the 14th February, 1990 against the two receipts in question. That order concerns the appellants application inter alia for leave to appeal which was struck out on the 20th November, 1991 as incompetent. It was the application filed by the appellants ex abundantia cautela as aforesaid upon the view or their learned counsel that some of the grounds of appeal filed raised questions or fact and mixed law and fact and therefore required the leave of court to be argued. In the third place, it appears to me that the suggestion in the said letter of the Deputy Chief Registrar, Court of Appeal, Benin to the effect that there was no valid appeal pending in the cause is entirely speculative and equivocal. This is borne out by the last paragraph thereof where it requested the Chief Registrar of the Supreme Court to cancel the matter from the Cause List “if the information given above is the true position” in the circumstance, I entertain no doubt that the 1st and 2nd respondents have woefully failed to establish beyond reasonable doubt any forgery of the two receipts in issue as was submitted on their behalf. I agree with Chief Ajayi S.A.N. that no circumstantial evidence can undermine the concrete evidence of the receipts, Exhibits PE3 and PE4 against which the Notice of Appeal of the 14th February, 1990 was filed. I also accept the submission of Mr. Sofola S.A.N. that no forgery of the receipts was established by the 1st and 2nd respondents as required by law. I uphold the submission of the applicants that there was a valid and competent Notice of Appeal filed in the cause on the 14th February, 1990 against the temporary receipt, Exhibit PE3, which was replaced the following day with the official receipt No. S160336, Exhibit PE4.

In conclusion, I have already observed that this action was instituted by the plaintiffs against the defendants/respondents in a representative capacity. The suit was filed by the named plaintiffs for themselves and on behalf of the Gbolokposo community who duly authorised them so to do. It is not in dispute that all the three named plaintiffs are now dead. The 2nd and 3rd plaintiffs died between 1975 and 1983 but the 1st plaintiff only died on the 3rd August, 1993. The Notice of Appeal in these proceedings was filed in the court below on the 14th February, 1990. It is therefore clear that before the death of the last surviving plaintiff on the 3rd August, 1993, the said Notice of Appeal had been properly and validly filed on the 14th February, 1990. Consequently there is a competent and pending appeal before this court in the cause.

It cannot be disputed that where in a suit filed by the plaintiffs in a representative capacity, all the named plaintiffs die, any of the unnamed parties represented may apply to the court to be substituted for the deceased plaintiffs to enable the prosecution of the suit or the appeal therefrom. See Obi Okonji and others v. George Njokanma and others, supra. The present applicants are not only members of the Gbolokposo community represented by the deceased plaintiffs, they have also been appointed by the Gbolokposo community to be substituted for the deceased plaintiffs and to prosecute their pending appeal on behalf of the community. It seems to me therefore that this is a proper case in which the applicants may be substituted for the deceased named plaintiffs.

Prayer (1) of this application accordingly succeeds and the applicants, to wit,

1. Osibakoro D. Otuedon
2. Peter O. Egueye

are hereby substituted for the deceased plaintiff’s to prosecute this appeal for themselves and on behalf of the Gbolokposo community. The 2nd – 5th prayers having been withdrawn are hereby struck out.

There will be no order as to costs.

UWAIS, J.S.C. I have had the opportunity of reading in draft the ruling read by my learned brother Iguh, J.S.C. I entirely agree with the ruling. However, I wish to draw attention to Order 8 rule 9 (2) of the Supreme Court Rules, 1985 which reads.

“2. If it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Rule 11 of this Order, be made in that behalf to the court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.”

One of the occasions, when it will be necessary to substitute a party to an appeal, is when the death occurs of a party to the case in the capacity of either appellant or respondent as the case may be, who has sued or been sued either on his own or on behalf of others. See Okonji v. Njokanma (1989) 4 NWLR (Pt. 114) 161 where this Courts (Eso, Uwais, Oputa, Agbaje and Craig, JJ .S.C.) made the following observation on pages 166H – 167 as per Eso, J.S.C. –

“When an action is instituted in a representative capacity and or against persons in representative capacity that action is not only by or against the named parties. They are also by or against those the named parties represent. Those are not stated nomine. Indeed they may be one or two more, indeed they may be legion. And so, if all the named parties die the action still subsists on behalf or against those they represent but who have not been stated nomine.

As it is an action on trial, it is also when the matter is on appeal. The appeal, as the case may be, subsists but the action on the appeal, again, as the case may be, cannot be prosecuted until a living person has been substituted for the named dead party.”

Having found that the appeal is not null and void but valid and the action in the case was brought in a representative capacity, I have no hesitation in granting the application for the applicants herein to be substituted for the deceased plaintiffs. Accordingly, the application succeeds and it is hereby granted as prayed with no order as to costs.

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SC.98/1993