Joseph Adebayo Osagunna V. The Military Governor Of Ekiti State & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

Following the death on 21st October, 2000 of Joseph Adebayo Osagunna, the plaintiff/appellant, the applicants herein brought this application praying this Court for an order that the applicants be substituted for the named appellant now dead, to prosecute this appeal for themselves and on behalf of the other members of the Amilede Descendants/branch of the Onidasa Ruling House of Ipoti Ekiti. The application is supported by an affidavit sworn to by one Adefemi Olowolaiyemo, the penultimate paragraphs of which read as follows:

“1. That I am a member of the Amilede Descendants/branch of the Onidasa Ruling House of Ipoti Ekiti and have the authority of the family to swear to this affidavit.

3. That I know that the appellant however died in Abeokuta Ogun State on the 21st of October, 2000 and was buried on the 8th of December, 2000 in Ipoti Ekiti. A copy of the appellant’s Death

Certificate is now produced and shown to me marked Exhibit ‘AO1’.

4. Although, the action under appeal involved a dispute as between the plaintiff (now deceased) and the 4th defendant as to who was rightly entitled to be made the Olupoti of Ipoti-Ekiti, a number of other vital issues were raised and contested in relation to rights of a number of families in relation to the Olupoti Chieftaincy title.
5. The plaintiff claimed that only three families which formed the Amilede Descendants/families were entitled to present candidates for the Olupoti Chieftaincy whilst the 4th – 7th defendants contended that there was only one Ruling House, the Onidasa Ruling House which consisted of five families, all of which were entitled to present candidates for the Olupoti Chieftaincy.
6. The plaintiff’s case was that only the Asao, Emila and Ejemu families which together formed the Amilede Descendants/branches could present candidates for the Chieftaincy, the plaintiff being a member of the Asao family.
7. Although the plaintiff/appellant is now dead, there remains unresolved the substantial issues which were contested between the five constituent families of the Onidasa Ruling House of Ipoti Ekiti, of which three are on the plaintiff’s side whilst the remaining two are the families of the defendant/respondent.
8. That this appeal challenges the determination of the Court of Appeal that, although the Kingmakers had failed to comply with the requirements of Ipoti-Ekiti native law and custom in selecting the 4th defendant/respondent, that failure was not important.
9. As members of the larger number of families interested in succession to the Olupoti Chieftaincy, all the members of the Amilede families, and on whose behalf the deceased plaintiff fought the action were vitally interested in the ultimate outcome of the action especially as it relates to the question whether or not the 4th defendant has been selected in accordance with the Ipoti-Ekiti native law and custom.
10. It is therefore, in the interest not only of the other members of the Amilede and Onidasa ruling houses but also that of the whole of Ipoti-Ekiti that the issue of compliance of native law and custom be resolved on the merits.
11. The claims on the writ of summons and the pleadings of both parties show abundantly that the plaintiff’s action was in reality as well as appearance, fought by him not only for himself but also for and on behalf of the Amilede Descendants/Families of Ipoti Ekiti.
12. The deceased plaintiff had initially been unanimously chosen by the members of the Asao, Emila, Ejemu families/branches – the Amilede Descendants – as their candidate for the Olupoti Chieftaincy and thereafter authorized by the Amilede Descendants to institute the action Suit No. AK/62/88 to vindicate the rights of the family as well as his own.
13. It is only by substituting the chosen representatives of the Amilede descendants i.e. the Asao, Emila and Ejemu families that the appeal can be properly re-constituted so that the real issue in controversy between the real parties to the action can be decided by the Courts.
14. At a meeting of the Amilede Descendants comprising the Asao, Emila and Ejemu branches of the Onidasa Ruling House held at Asao’s compound Ipoti-Ekiti on the 12th of December, 2000, the members of the families appointed the applicants as representatives of the Amilede Descendants aforesaid, to replace and be substituted for the plaintiff (now deceased) to prosecute the pending appeal in the Supreme Court in Suit No. SC/19/1997. A copy of the minutes of the said meeting is now produced and shown to me marked ‘A02’.
15. The justice of the case demands that the representatives now chosen by the Amilede Descendants/branches of the Onidasa Ruling House be now permitted to prosecute the appeal for themselves and on behalf of the Amilede Descendants/branches of the Onidasa Ruling House being the Asao, Emila and Ejemu families of Ipoti Ekiti

The plaintiff/appellant had in his personal capacity, sued the defendants/respondents herein claiming as per paragraph 36 of his further and further amended statement of claim-

“DECLARATION THAT

1. (i) The Declaration purportedly made under S.5(1) of the Chief’s Edict 1984 as the customary law regulating the selection of the Olupoti of Ipoti Chieftaincy approved on 24/12/87 registered on 24/12/87 is defective, faulty and objectionable and it is not a true reflection/codification of the Customary law regulating the selection of a person to be the holder of the Olupoti Chieftaincy and should, therefore be null and void and of no effect whatsoever.

(ii) All actions purported to have been taken by:

(a) The so called Head of the Onidasa Ruling House namely, Chief Adaramola Adesuyi, the Ejisun.

(b) The so called kingmakers of the Olupoti of Ipoti Chieftaincy, namely Chiefs Inurin Abisoye,

Arowolo Bisinkin and Zasuzu Ejesu respectively: and

(c) The Secretary of Ijero Local Government in the purported nomination and selection of one Dr.

Elijah OIadele Ayeni under the provision/authority of the said declaration is unlawful, null and void and of no effect whatsoever.

(iii) The purported selection of Mr. Elijah Oladele Ayeni as Olupoti-elect by the said so called kingmakers is unlawful, null and void and of no effect whatsoever.

(iv) The Asao, Emila and Ejemu families/branches, otherwise known as Amilede houses of the Oladele Ruling House are the only and truly sons (princes) of the Onidasa Ruling House of Ipoti Ekiti and the only and truly the families/branches of the said Ruling House that can lawfully nominate a candidate(s) for selection into the vacant stool of the Olupoti of Ipoti by the true kingmakers, the Iwarafa mefa (the Inner Council) excluding the Olupoti of Ipoti namely Chief Odofin of Ipoti, Onijiyan of Ejiyan, Odofin Ejiyan, Ajana Owa and Odofin Owa in accordance with the customary law of the Ipoti-Ekiti Community.

(v) The proper and true Head of the Onidasa Ruling House is Chief Asao and not Chief Ejina.

(vi) The Awaros, namely Chief Aworokin, Aworojasin and Asalu are the true and only accredited channel of consultation with the Ifa oracle in the nomination and selection processes(s) of a person to fill the vacant stool of the Olupoti of Ipoti Chieftaincy.

(vii) The plaintiff, namely, Prince Joseph Adebayo Osagunna having been unanimously, properly, duly and jointly nominated by the Asao, Emila and Ejomu (Amilade) families/branches of the Onidasa Ruling House for the vacant stool of Olupoti be approved by the Ondo State Government.

2. An Order compelling the Executive Council of Ondo State to direct the Committee of the Ijero Local Government charged with the making of declarations under S.1 of the Chiefs Edict, 1984 to amend the said Olupoti Chieftaincy declaration or make a new declaration to reflect the true customary law regulating the selection of a person to be the holder of the Olupoti Chieftaincy.

AN INJUNCTION:

(i) Restraining the 1st, 2nd and 3rd defendants by themselves or their servants and or agents or otherwise howsoever from implementing or giving effect to the purported nomination and or selection of the 4th defendant, namely, Elijah Oladele Ayeni as the Olupoti of Ipoti or Oba-elect.

(ii) Restraining the 4th defendant, namely, Elijah Oladele Ayeni from parading or holding out himself as the Olupoti of Ipoti Ekiti and from exercising any of the Olupoti royal functions.”

In his further and further amended statement of claim, he averred as follows:

1. The plaintiff is a Prince of Onidasa Ruling House of Ipoti Ekiti, the son of late Deacon John Osaguuna who was himself a prince and son of the 9th Olupoti of Ipoti Ekiti namely, Oba Arojojoye otherwise known as Adeoye Agbada, Ogidan and is a candidate aspiring for nomination/selection to the vacant stool of the Olupoti of Ipoti Ekiti Chieftaincy.
2. The plaintiff avers and will contend that the competent accredited kingmakers of the Olupoti of Ipoti Chieftaincy under the native law and custom of Ipoti-Ekiti are the members of the Inner Council excluding the Olupoti namely Chief Odofin Ipoti representing Ipoti quarter and two Chiefs each of the other two quarters constituting Ipoti Ekiti Community, Chief Sajiyan and Odofin Ejiyan both of Ejiyan quarter, Ajana Owa and Odofin Owa both of Owa quarter. The plaintiff will rely on Bovell-Jones Intelligence Report of 1936 and Morgan’s verbatim Report No. 181 at the trial of this suit.
3. The plaintiff avers that the 5th, 6th and 7th defendants are not the kingmakers (Iwarefa mefa) under the Ipoti Native Law and Custom and therefore acted ultra vires and without any authority whatsoever under Ipoti Native Law and Custom in selecting the 4th defendant to fill the vacant stool of the Olupoti of Ipoti. The plaintiff will rely on the documents listed in paragraph 9 above.
4. The plaintiff avers that none of the surviving members of the said Iwarefa mefa (Kingmakers) was consulted by anybody on the existing vacancy stool of the Olupoti of Ipoti.
5. The plaintiff will further contend that from time immemorial and in Ipoti traditional history, none of the ten past Olupotis that reigned before now emerged from the 4th defendant’s house/family. Plaintiff pleads answers to questionnaire by the Morgan Chieftaincy Review Commission from the late Oba J.A. Ajayi Ajigunna the latest Olupoti to join his ancestors and the letter attached therewith.
6. The plaintiff avers that the Onidasa Ruling House consists of three (3) branches only with a common ancestry and not five (5). These three branches are namely:

(a) Emila

(b) Asao and

(c) Ejemu

18. The plaintiff would also contend that the 4th defendant hails from Ejisun family which is not a member of the said Amilede families of the Onidasa Ruling House. The Ejisun family from time immemorial produced the Olori Emese, meaning the Head Messenger to the Oba and whenever a holder of the said title became too old to run errands he was honoured with the minor Ejisun Chieftaincy title by virtue of which he presided as the Olori-Ebi Oba over the meetings of the Ejisun and Olomo families both quartered within the royal Idasa Compound to facilitate the efficient and convenient performance of their services to the Oba.
19. The plaintiff shall contend that the Olomo family is not a member of the Amilede families of the Onidasa Ruling House. The Olomo family from time immemorial produced the Akede Oba (Oba’s pilot). Chief Olomo is a minor chieftaincy with a staff of office called and known as the Omo from which, the title Olomo derived.
20. The plaintiff avers that Idasa is the Royal Compound of the Olupoti Chieftaincy from time immemorial”.

In their further amended statement of defence, the 1st – 3rd defendants/respondents averred, inter alia, thus:

“(3) In further answer to paragraph 1, the 1st – 3rd defendants aver that the plaintiff sought nomination with Onidasa Ruling House and contested for the vacant stool of Olupoti along with 4th defendant but lost the election so conducted by the kingmakers to the 4th defendant herein.

(6) In answer to paragraphs 7 and 8 of plaintiff’s claim, the 1st – 3rd defendants aver that

(i) The 5th – 7th defendants are by history and custom, kingmakers in Ipoti.

(ii) The 8th defendant is a member of Onidasa Ruling House and by virtue of his position as the head of the Onidasa, he presides over the Onidasa Ruling House.”

The 4th – 8th defendants/respondents, for their part, pleaded, inter alia, as follows:

“1. The 4th, 5th, 6th, 7th and 8th defendants admit paragraph 1 of the further amended statement of claim only in so far as the plaintiff claims to be a Prince of the Onidasa Ruling House of Ipoti Ekiti but deny that he is still a candidate aspiring for nomination/selection to the stool of the Olupoti into which the 4th defendant had been nominated and selected.

2. In answer to paragraph 5 of the further amended statement of claim, the 4th defendant states that he is a member of the Ejisun family, which is a branch of Onidasa Ruling House. The 4th defendant further states that the Ejisun family traditionally produces the Olori-Emese (meaning the ‘Head of the palace administration and security’) and the Ejisun who is the Head of the Onidasa Ruling House.
3. The 8th defendant admits paragraph 8 of the further amended statement of claim in so far as he is a minor chief of Ipoti and states further that he is the authentic Head of Onidasa the Ruling House of Ipoti and also known and called Olori-Ebi Onidasa under the Ipoti Native Law and Custom. The 8th defendant will rely on the Intelligent Report: Ijero District by Mr. T. B. Bovell-Jones dated June, 1936. The 8th defendant will further rely on the Report of the Morgan Chieftaincy Review Commission in respect of the Olupoti Chieftaincy.
4. The 4th – 8th defendants deny paragraph 9 of the further amended statement of claim and state that the Kingmakers for Olupoti of Ipoti Chieftaincy under the Native Law and Custom of Ipoti Ekiti are;-
5. Odofin Ipoti
6. Inurin Ipoti
7. Eisaba Ipati
8. Eisinkin Ipoti
9. Ejemu Ipoti.
10. The 4th – 8th defendants deny paragraph 18 of the further amended statement of claim and state that the 4th defendant hails from Ejisun family which is a branch of Onidasa Ruling House. The Ejisun family from time immemorial produce the Olori-Emese meaning “the Head of Palace administration and security”. Whenever the post of the Ejisun becomes vacant, the incumbent Olori-Emese is elevated to the post of Ejisun who presides over any meeting of the Onidasa Ruling House which consists of the five (5) branches.
11. The 4th – 8th defendants deny paragraphs 31 and 32 of the further amended statement of claim and states that the nomination/selection of the 4th defendant was in accordance with Ipoti Native Law and Custom as well as the procedure prescribed in the Chiefs Law and guidelines set out in the registered Declaration relating to the Olupoti of Ipoti.
12. The 4th – 8th defendants deny paragraphs 33 and 34 of the further amended statement of claim and state that the Ipoti Aworos do not have any pre-installation function to perform in the nomination/selection processes of an Olupoti of Ipoti.
13. The 4th- 8th defendants deny paragraphs 35(a) – (e) and 36(1) – (3) of the further amended statement of claim and state that the recommended declaration contained on page 80 of the White Paper Two on Morgan Chieftaincy Review Commission is a true reflection/statement of a person to the vacant stool of the Olupoti of Ipoti which was based on the totality of the evidence adduced before the Morgan Chieftaincy Review Commission on Olupoti Chieftaincy on 14th; November, 1978.”

From the pleadings and the claims of the plaintiff, two facts appear to constitute his case. First, that he, the plaintiff, as against the 4th defendant, was the rightful successor, under Ipoti customary law and usages, to the vacant Olupoti chieftaincy. Secondly, that the Chieftaincy Declaration under which the 4th defendant claimed to have been validly appointed, was not in accord with Ipoti age long customary law and usages. In this regard, it was plaintiff’s contention, among others, that the Onidasa Ruling House consisted of only the three families of Emila, Asao and Ejemu, otherwise collectively known as Amilede family. The 4th-8th defendants claimed that apart from the three families mentioned by the plaintiff, there were two other families namely Ejisun (to which the 4th defendant belongs) and Olomo, that belonged to the Onidasa Ruling house. These are the two principal issues placed before the trial High Court and the Court of Appeal. The trial High Court held-

(i) That the Olupoti of Ipoti Chieftaincy Declaration had not been approved by the State Executive Council in accordance with the provisions of the enabling Edict and was therefore null and void.

(ii) That there is only one Ruling house of the Olupoti Chieftaincy the Onidasa Ruling House consisting of five families and that Chief Ejisun was the head of the Ruling House.

(iii) That Ipoti native law and custom as reflected in exhibit “D” requires that the name or names of the candidates of the Olupoti Chieftaincy be sent to the Aworos for consultation with the Ifa Oracle and that this custom was violated in the selection of the 4th defendant and that his said selection was therefore null and void.

(iv) That the kingmakers are Odofin Ipoti. Chief Inurin, Chief Eisinkin, Chief Eisaba and Chief Ejemu as contended for by the defendants.

(v) that the Olupoti Chieftaincy Declaration was defective, null and void because

(a) it violated the customary law of the Ipoti community; and

(b) it was not published as required by law; and

(c) it was not approved by the appropriate authority.

The 4th-7th defendants appealed to the Court of Appeal against part of the judgment of the trial court, the 8th defendant having in the meantime died. The plaintiff also appealed against another part of the judgment of that court.

The Court of Appeal dismissed the plaintiff’s cross-appeal and allowed the main appeal of the 4th-7th defendants upholding in the main

(1) that there are five families constituting the Onidasa Ruling House which is the only ruling house in respect of the Olupoti Chieftaincy and

(2) that the Chieftaincy Declaration accorded with the customary law and usages of Ipoti.

Still dissatisfied with the judgment of the Court of Appeal, the plaintiff appealed to this court against the second finding of the Court of Appeal. It would appear that he had abandoned his claim I (vii) for his appointment to be approved by the State Government. This is borne out by the only issue placed by the plaintiff before this court for determination, that is to say:

“Having held that there had been a violation of the native law and custom of the Ipoti Ekiti in the selection of 4th defendant was the Court of Appeal entitled to uphold the validity of the said selection upon a ground which was founded upon a case which was completely contrary to the case made by defendants in the court below”

Strangely enough the 4th-7th defendants also cross-appealed against the finding of the Court of Appeal that the Chieftaincy declaration was valid. Their contention is that there is a clause in the Declaration which is incorrect and should by expunged. Incidentally, this is the clause that was not adhered to by the kingmakers before he was appointed by them. Both appeals have not yet been argued; I would therefore, refrain from commenting on their merits at this stage. Suffice it to say, however, that both parties have grouses, though of different nature, against the correctness of the Chieftaincy Declaration which all the defendants all along held out to be correct. Thus, the only issue left to be finally resolved in this action is the correctness of the Chieftaincy Declaration relating to the Olupoti Chieftaincy (Exhibit “D”) vis-a-vis the custom and usages of the Ipoti community.

It is with the background of this case I have narrated above, that I now proceed to consider the application for substitution now before us. No doubt, the plaintiff/appellant is dead. Can there be substitution for him This depends on whether the action survives him. I have examined his three claims, particularly the declarations sought by him in Claim (1). Claim 1(vii) which sought a declaration to have his appointment approved by the State Government obviously died with the plaintiff. Indeed, he had abandoned this claim before his death. All the other declarations in Claim (1) and Claims (2) & (3) – all relate to the question whether Exhibit ‘D’ accords with the Ipoti customs and usages in the appointment of the Olupoti. It is my respectful view that those claims do not die with the plaintiff; they survive him. I say this because the Chieftaincy declaration is not limited to the occasion of the filling of the existing vacancy in the Olupoti Chieftaincy; it is for all time. And the validity of the appointment of the 4th defendant/respondent and indeed of all future appointments by the office of the Olupoti – depends on the validity of Exhibit ‘D’ The next question now is: who can be substituted for the deceased plaintiff/appellant

Chief G.O.K, Ajayi, SAN, while conceding that the plaintiff sued in his personal capacity, submitted that a close look at the proceedings would disclose that he was suing in a representative capacity on behalf of his family. Citing Afolabi v. Adekunle (1983) 2 SCNLR 141;1 ANLR 470-478 learned Senior Advocate submitted that once it was clear that a person was making a claim on behalf of a group, that group was the real plaintiff before the court and the court would treat him as suing on behalf of that group. Learned counsel submitted that in the event of the death of that person, the court would expect the group to bring forward other names to represent the named representative who was dead.

O. Adewale Esquire, the learned Attorney-General of Ekiti State submitted on behalf of the 1st-3rd defendants/respondents, that the application was misconceived and should be dismissed. He observed that the deceased plaintiff/appellant sued in a personal capacity. Learned Attorney-General submitted that except in some cases death of a party put an end to his suit. He cited In re: Otuedon (1995) 4 NWLR (pt. 393) 655 in support of his submission. As to who could be substituted for a deceased party, the learned Attorney-General referred to Order II rule 38 of the Ondo State High Court (Civil Procedure) Rules (applicable in Ekiti State) and submitted that only the deceased’s legal representatives could successfully apply to be substituted for the deceased appellant. He argued that as there was nothing in the affidavit in support of the application of the applicants that they were such legal or personal representatives. of the deceased, they were not entitled to the order sought. Learned Attorney-General urged us to find that at no time was the deceased appellant representing the applicants or the people they now too claimed to represent. He submitted that the main issue in contention between the deceased and the 4th respondent was whether or not the deceased appellant was entitled to have his name submitted along with those of the 4th defendant/respondent and others to the “Ifa” oracle for consultation. Learned Attorney-General submitted that this was a claim that could not outlive the deceased appellant. He submitted that Afolabi v.Adekunle relied on by Chief Ajayi SAN was neither applicable nor relevant to the present case. He referred us to Otapo v.Summonu (1987) 2 NSCC 677, 709;(1987) 2 NWLR (pt 58) 587 and observed that the action was not endorsed as a representative action. Finally, learned Attorney-General urged the court to refuse the application as being incompetent and to strike out the appeal pursuant to Order 8 rule 9(2) of the Supreme Court Rules.

J.O. Disu Esquire, for the 4th-7th defendants/respondents submitted that the appeal was brought in a personal capacity by the deceased appellant and referred to Order 5 rule 11 of the High Court Rules. He submitted that no inference of representative capacity by the deceased could be drawn from the record. Learned counsel observed that the 1st applicant testified at the trial as PW6 and did not claim in his evidence that the deceased was representing his interests. Mr. Disu referred to the finding of the trial court and affirmed by the Court of appeal that there was no Amilede Ruling House but Onidasa Ruling House and argued that to allow applicants to come into the case in the manner prayed for by them would run counter to the concurrent findings of the two courts below. He submitted that this appeal died with the deceased appellant and cited Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 NWLR (pt. 226) 661,675. He too urged us to refuse this application and strike out the appeal.

Chief Ajayi, in a short reply, while conceding that the action was filed as a personal action, submitted that the deceased appellant made some of his claims on behalf of his family.

I must say at the onset that, with respect to learned Senior Advocate, I do not share his view that an inference could be drawn from the record before us that the deceased plaintiff/appellant prosecuted his action as a representative of his family. It is clear from the pleadings and the claims that the main goal of the plaintiff was to gain the office of the Olupoti for himself. And in so doing he had to show that he was duly selected by the family entitled so to do and was appointed by the right customary kingmakers. He had to show also that his principal rival (the 4th defendant/respondent) is not from the family entitled to the office of the Olupoti and thus disqualified him from holding the office. He had to show also that the kingmakers who appointed the 4th defendant had no right or power under Ipoti customs and usages to appoint an Olupoti. It was in the process of discharging the burden on him that he had to discredit the Chieftaincy Declaration (Exhibit “D”) as not in accord with the customary law of Ipoti. At no time, therefore, could the deceased by said to be representing his own family; he was all along fighting his own cause. I do not see how the applicants could take over the prosecution of this appeal in a representative capacity when the action was not fought in that capacity. The case of Afolabi v. Adekunle (supra) learned Senior Advocate relied on is not just apposite. In that case, the plaintiffs sued for a declaration of title to land. Both plaintiffs and defendants agreed that the original owner of the land in dispute was the Ataoja of Oshogbo. The plaintiffs claimed that the Ataoja granted the land to their father, Adekunle. The defendants however contended that the land was granted by Ataoja to the Osbogbo Hausa Community whose Seriki (leader) sold it to the 1st defendant. The trial Judge found as a fact that the said land in dispute was part of a larger area of land granted by the Ataoja to the father of the 1st plaintiff but that as the 1st plaintiff did not sue in a representative capacity for himself and on behalf of the Adekunle family, he non-suited him On plaintiffs’ appeal to the Court of Appeal, that court upheld the learned trial judge’s finding of fact as to the grant to Adekunle, amended the plaintiffs’ writ of summons by altering the capacity in which the 1st plaintiff sued, set aside the trial court’s order of non-suit and, in its place, entered judgment for the 1st plaintiff for a declaration of title as claimed. On defendant’s further appeal to this court, this court upheld the amendment made by the Court of Appeal. In the lead judgment of Aniagolu JSC, the learned Justice of this court opined at page 478 of the report:

“And so, both in his pleadings and in his evidence, the first plaintiff had admitted, and conceded, that the land in dispute and the larger area of land of which the land in dispute formed a part, belonged to him and the other children of J.F.Adekule. He had not claimed ownership of the land to the exclusion of the other children of J.F. Adekunle. There was, therefore, no dispute between him and the said other children of J. F. Adekunle. Having found as a fact that the land in dispute rightly belonged to J.F. Adekunle, and, by implication, that persons entitled to the estate of the said J.F. Adekunle were the owners of the land, that is to say, the first plaintiff and the other children of J. F. Adekunle, could the court be doing justice if it failed to grant a declaration of title to the first plaintiff and the rest of the children of the said J.F. Adekunle I think not.

It is the duty of courts to aim at, and to do, substantial justice and to allow such formal amendments, in the course of the proceedings, as are necessary for the ultimate achievement of justice at the end of litigation.”

The learned Justice of the Supreme Court cited with approval Gbogbolulu v. Hodo (1941) 7 WACA 164,165 and Kaja Atta v. Kwaku Apawu & Ors. (1941) 7 WACA 75,76 where the West African Court of Appeal laid down the circumstances under which the court should grant amendment of claim to make clear the capacity in which the plaintiff sued and the defendant was sued. Obaseki JSC at page 484 of the report restated the law clearly. He said.

“This court has held time without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial court can justifiably properly enter judgment for or against the party in that capacity, even if amendment to reflect that capacity had not been applied for and obtained. see Ayeni v. Sowemimo (1982) 5 Sc. 60; Dokubo v. Bob Manuel (1967) 1 All NLR 113 at 121; Mba Nta & Ors. v. Ede Nweke Anigba & Anar. (1972) 5 SC. 156 at 174-175; Shelle v. Chief Asajon (1957) SCNLR 286 (1957) 2 FSC 68; Habib Dim v. L.W Daniel Kalia FSC 216/1962 decided on 7th March 1964.”

Afalabi v. Adekunle is concerned with the amendment of the capacity of a party and not with substitution we are concerned with in this application.

The capacity in which the deceased plaintiff/appellant instituted this action is not in dispute; it is in his personal capacity. The applicants implicitly admit as much. For in paragraph 4 of the affidavit of Adefemi Olowolaiyemo in support of their application, the deponent testified that:

” Although the action under appeal involved a dispute as between the plaintiff (now deceased) and the 4th defendant as to who was rightly entitled to be made the Olupoti of Ipoti-Ekiti, a number of other vital issues were raised and contested in relation to rights of a number of families in relation to the Olupoti Chieftaincy title.”

The deceased plaintiff/appellant could not have sued in a representative capacity as his writ was not so endorsed as required by Order 5 rule 11(1)(a) of the Ondo State High Court (Civil Procedure) Rules 1987, which provides:

“(1) Before a writ is issued it shall be endorsed-

(a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which he is sued;”

I have earlier in this judgment decided that this appeal did not die with the deceased appellant. I, therefore, with respect, overrule the submissions of learned Attorney-General and Mr. Disu in this regard. The claim 1(vii) of the deceased appellant which I hold died with him, is not an issue in this appeal which is concerned primarily with the validity of the Olupoti Chieftaincy Declaration. (Exhibit D). This is also the issue in the cross-appeal.

I now go back to the question: who can be substituted for the deceased appellant Order 8 rule 9(2) of the Supreme Court Rules provides:

“(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.”

The rule is silent on who is entitled to be added or substituted. I, therefore, (all back on the Rules of the trial High Court. Order 11 rule 38 of the Ondo State High Court (Civil Procedure) Rules 1987 (applicable in Ekiti State) provides:

“38. In case of the death of a sole plaintiff, or sole surviving plaintiff, the Court may, on the application of the legal representative of such plaintiff, enter the name of such representative in the place of such plaintiff in the suit, and the suit shall thereupon proceed;” …..

This rule is in pari materia with the old Order 17 rule 4 of the Rules of the Supreme Court (England) (latterly 0.15 r.7 RSC and now part 19.8 CPR) which had come for interpretation in a number of cases. In such cases as Burstal v. Fearon (1883) 24 Ch.D 126; Lang v.Oossley (1879) 13Ch.D 388; Re: Atkins Estate (1875) 1 Ch.D 82; Re: Dynevor, etc. Co (1878) W.N. 199, and Re: Commercial Bank of London (1888) WN 214, it was held by the courts that on the death of a sale plaintiff after action brought in a case where the cause of action survives, his executor or administrator may obtain an order to carry on the proceedings.

In Nwanyieke Mbanu v. Godfrey Mbanu (1961) 2 SCNLR 305; (1961) ANLR 679, also (1961) 2 SCNLR 305 – a case not dissimilar to the case on hand – following the death of the appellant Nwanyieke Mbanu, Ephraim Nnabugwu applied to the Federal Supreme Court for leave to be substituted. The pleadings showed that the applicant had such an interest in the subject-matter of the action as might have entitled him to be added as a party to the action, and might also have entitled him to bring an appeal under subsection (6)(a) of section 110 of the Constitution of the Federation, 1960 (see now sub-section (5) of section 233 of the Constitution of the Federal Republic of Nigeria, 1999). The applicant did not apply to be made a party to the action; and, at the time of the appellant’s death the time for appeal had expired; so that the course was then closed to him. There was no transmission of the appellant’s interest in the subject matter to the applicant upon the appellant’s death. The Federal Supreme Court held that a person to whom a deceased party’s interest in the subject matter of proceedings has not been transmitted on the death of the party, will not, on his own motion, be substituted as a party to the proceedings in the place and stead of the deceased. In Eyesan v. Sanusi (1984) 1 SCNLR 353; (1984) 15 NSCC 271,283 Obaseki JSC gave an indication as to who can be substituted where a party dies. He said:

“If the cause of action is one that survives the death of either party, appointment of a person or persons to carry on the proceeding in place of the deceased party is a necessary function of the court either of 1st instance or of appeal on application by the personal representative of the deceased or the beneficiaries of the estate or on application by represented parties or on application by the other party so that the proceedings can be brought to a close. Tesi Opebiyi v. Shitu Oshoboja & Anor. (1976) 9 – 10 SC. 195.” (Italics are mine)

In the matter on hand, the applicants have not shown that they are the legal or personal representatives of the deceased Osagunna nor have they shown that the latter’s interest in the subject matter of the proceedings herein has been transmitted to them on his death. It may be that they and the people they now seek to represent have sufficient interest in the only issue left to be determined in the appeal to this court. That by itself alone will not entitle them to be substituted for the deceased appellant. As the Federal Supreme Court observed in Mbanu v. Mbanu, it may be that the interest of the applicants and the people they seek to represent, in the Olupoti Chieftaincy Declaration would entitle them to be joined with the deceased Osagunna as plaintiffs in the action or to entitle them to appeal pursuant to subsection (5) of section 213 of the Constitution of the Federal Republic of Nigeria, 1979 (now section 233(5) of the Constitution of the Federal Republic of Nigeria 1999), the fact remains that they did not avail themselves of any of these rights. Not having shown, therefore, that they are persons entitled to be substituted for the deceased plaintiff/appellant this application of theirs must fail and it is accordingly dismissed by me.

Before I end this ruling I need to consider the submission of learned counsel for the 4th -7th respondents that we dismiss the appeal for the reason that the appellant is dead. I do not think we should accede to this request. First, Order 8 Rule 9(5) of the Rules of this court speaks of “the appeal shall be struck off the bearing list’. If sub-rule (5) of rule 9 must be strictly adhered to at this stage it is both the appeal of the deceased appellant and the cross-appeal of the 4th-7th respondents that would of necessity be affected. Secondly, what is before us now and on which we are ruling upon is the application of the applicants for substitution. It may well be that after delivering this ruling the 4th-7th respondents would want to substitute someone for the deceased so that their appeal, which is crucial to the validity of the appointment of the 4th respondent) could be heard and disposed of.

I award N1,000.00 costs of this application to the 4th-7th respondents only; the 1st-3rd respondents have not filed a brief in this appeal.

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SC.19/1997 (R)