Margaret Nzom & Anor. V. S.o.jinadu (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C.

The Plaintiff, S. O. Jinadu sued one Patrick Nzom (for himself and on behalf of the family of J. C. Nzom deceased). The writ of Summons is at page 5 of the record of proceedings and was dated 14th February, 1973. The Treasury Receipt C.R.897461 for filing was dated 10/2/73. It is therefore permissible to assume that the Writ was filed on 10/2/73.

The Plaintiff filed his Statement of Claim on the 30/6/73. The Writ and the Statement of Claim could not be served on Patrick Nzom who, it was alleged, died sometime in 1949. This fact was however unknown to the Plaintiff until long after filing the Writ. On the 26th day of March, 1973, Kazeem, J. (as he then was) granted the Plaintiff leave to serve the Writ and other processes by substituted means, namely by publication in the Daily Times Newspaper. This was done on the 11th February, 1975.

Then followed an unending litany of affidavits, motions, objections etc,. The fact is that this case filed on 10/2/73 had not been heard on the merit for the past 13 years. An objection was taken in the trial Court on 2/2/81 before Desalu, J. that the Writ of Summons was issued against Patrick Nzom who was on 10/2/73 the day the Writ was issued, not alive but dead – dead since 1949.

It is important here to note that the motion for an “Order striking out the above suit on the ground that the Writ of Summons commencing the Suit having been issued against a dead person, the same is null and void “was brought not by Patrick Nzom (who has been reported dead) nor by his personal representatives. The motion was brought by Margaret Nzom and Cyprian J. Obi.

The question that naturally arises is what business had Margaret Nzom and Cyprian Obi with a suit against a dead man whose estate they were not representing The answer seems to be that in the original Writ of Summons Patrick Nzom was sued “for himself and an behalf of the family of J.C. Nzom, deceased” and as sworn to in paragraph 5 by Andrew Nwachukwu Anyamene, learned counsel for Margaret Nzom and Cyprian Obi on 3rd day of April, 1978 (p.24 of the record):-

“5. One of the property in respect of which the said application (for the grant of letters of administration) is being made is the house situate at No.39 Seriki Aro Avenue the subject matter of the above suit”

In other words Margaret Nzom the eldest widow of J.C. Nzom and Cyprian J. Obi, first cousin, of late J.C. Nzom were to administer the estate of late J.C. Nzom for his beneficiaries.

This somehow explains the motion at p.26 of the record and the affidavit at p.27 thereof. Whether joining an action brought against the deceased, Patrick Nzom, was the right step to take to protect the estate of J.C. Nzom is another matter. However in the motion, the applicants, Margaret Nzom and Cyprian Ikeokwu Obi prayed “for an Order that they be joined as co-defendants in the Suit”. They were so joined. The Order made by Desalu, J. at p.28 was “Order as prayed”.

I said earlier on that there was an application made before Desalu, J. to strike out the Writ of Summons commencing this action as invalid, null and void (see p. 106 of the record). Arguments were heard on both sides and on the 6th day of March, 1981, Desalu, J. dismissing the applicants’ motion to strike out the Writ ruled inter alia:-

“(i) I have earlier on in the Ruling held that the Writ of Summons “commencing the suit” is the amended Writ of Summons against three Defendants.

(ii) The applicants sought to be joined in this case and they were joined as Co-Defendants in this case.

(iii) Even if the case against the 1st Defendant fails and the institution of the action against him is null and void, it is my considered view that this fact, does not vitiate the Writ of Summons sufficient to declare it null and void, in its entirety.

(iv) The Writ of Summons subsists against the Applicants in this matter.”