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.”
The present Appellants dissatisfied and aggrieved appealed against the ruling of Desalu, J. to the Court of Appeal Lagos Division Coram Ademola, Mohammed and Kutigi, J.J.C.A. In a lead judgment by Kutigi, J.C.A., to which Ademola and Mohammed, J.J.C.A., concurred, the Court of Appeal dismissed the Appellants’ appeal and ordered the parties “to go back to the Ikeja High Court and proceed with the trial. In this lead judgment, Kutigi, J.C.A. at page 177 lines 20-22 held:-
“Order 15 Rule 6A of the English Supreme Court Rules cited by Mr. Lardner are clearly provisions in respect of Proceedings Against Estates and does not in my opinion apply. This is so because as I have stated earlier on in this Ruling the trial court had on 15/1/79 granted leave for the Writ and Statement of Claim to be amended”.
The Appellants again lost in the Court of Appeal as they had lost in the Court of first instance.
Again dissatisfied and aggrieved the appellants have now appealed to the Supreme Court of Nigeria against “the whole decision” of the Court below. The Respondent did not cross appeal against the decision of the Court below that “Order 15 Rule 6A of the English Supreme Court Rules….are clearly provisions in respect of Proceedings against Estates and does not apply to this case”. Rather he filed a Notice of Intention to Contend That The Judgment should Be Affirmed On Grounds Other Than Those Relied On By The Court Below.
Both sides agree that the questions for determination in this appeal are asset out in the Appellants’ Brief as follows:-
“(a) Is a writ of summons issued against a dead person null and void or merely defective
(b) If a nullity, can such a writ be validated by subsequently joining thereto living persons
(c) If a person is joined in a suit as administrator when he has not obtained letters of administration, is the joinder null and void
(d) Was it competent for the Court after joining the appellants herein in the suit as administrators subsequently to revoke the said Order so that they are joined personally”
Before tackling the real issue in dispute, it is necessary to state the facts correctly as no Court is allowed to travel beyond the facts of the case before it. Similarly a purported question for determination which travels beyond those facts is merely speculative and purely academic.
What then was the application for joinder made by the Appellants and what was the order of Court These are facts which must be stated correctly. The motion for joinder was brought by the Appellants. The parties to that motion were stated thus:-
S. A. Jinadu …………………………….Plaintiff
and
- Margaret Nzom)
- Cyprian Ikeokwu Obi)……………………..Parties to be joined
The heading above did not suggest that the parties who sought to be joined were seeking such joinder in their capacity as administrators of any estate. Also in the motion itself the prayer was for an Order:-
“that Margaret Nzom and Cyprian Ikeokwu Obi be joined as co-defendants in this suit” (see p.26 of the record).
The Order for joinder made by the trial Court was as follows:-
“The Order is as prayed. It is hereby ordered that Margaret Nzom and Cyprian Ikeokwu Obi are hereby joined as the 2nd and 3rd Defendants in this matter” (see p.28 lines 28-30 of the record). There was no order of Court joining the Appellants as administrators of the estate of J.C Nzom. I admit that in an affidavit sworn to by Andrew Nwachukwu Anyamene, legal practitioner of 46 Zik Avenue, on 3rd April 1978 paragraph 3 therein referred to “grant of letters of administration is likely to be made within three weeks” and in paragraph 10 it was deposed that “I have advised the applicants for letters of administration and the beneficiaries that their best course of action is to apply to be joined as defendants in the above suit …. ” yet they did apply to be joined as defendants simpliciter. They did not apply to be so joined in their capacity as administrators of the estate of late J.C. Nzom. Not only that they did not so apply but also they could not have so applied since they, on that date, had not been granted any letter of administration. In any event the order made by Desalu, J. is clear and unambiguous. It speaks for itself. In view of that order, questions (c) and (d) of the Questions For Determination in this appeal do not arise. It will therefore be an exercise in futility to consider them and I will not consider them.
Question (a) for determination is the crux of the matter. Is a writ issued against a dead man null and void Mr. Anyamene says yes it is null and void. Mr. Lardner says No it is not null and void. Mr. Anyamene relied substantially on the latin maxim Actio personalis moritur cum persona and on the several cases decided by our Courts relating to that maxim and again on the English case of Dawson (Bradford) Ltd. & ors v. Dove & anor. (1971) 1 Q.B.D. 330: (1971) 1 All E.R. 554 at p.558. Mr. Lardner on the other hand pitched his tent on the English Order 15 Rule 6A. I will now proceed to consider the contention of each party to this appeal.
Actio personalis moritur cum persona literally means:-
A personal right of action dies with the person. This is a common law principle. Under that principle most actions in tort died with the person, whether the person dying was the injured party or the wrong doer. The practical importance of this maxim has now almost disappeared, as the maxim has been seriously eroded by Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 which provides in general terms 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.
Strictly speaking the maxim presupposes that the cause of action arose when both parties were alive, that one party took out an action and that during the pendency of that action but before its conclusion one of the parties died. In such a case the cause of action will then die with the deceased party. In this case on appeal the cause of action was alleged to have arisen in 1970 “immediately after the Nigerian civil war” and the cause of action was against J.C. Nzom.
In spite of all these, it was Patrick Nzom who was alleged to have died in 1949 who was sued. In other words by the time the cause of action arose in 1970, Patrick Nzom was 21 years dead. Patrick Nzom cannot by any stretch of the imagination be brought under the maxim actio personalis moritur cum persona. The maxim is thus completely irrelevant to any proper consideration of Question (a) for determination in this appeal.
Mr. Anyamene, S.A.N. cited some Supreme Court decisions in support of his argument. The first case he referred the Court to was I. O. Eyesan v. Y. O. Sanusi (1984) 4 S.C. 115. In that case the Plaintiff Eyesan instituted an action No.LD/208/75 against Y.O. Sanusi as Defendant. Both parties were alive when the action was instituted. Both sides filed and exchanged pleadings fought the case to a conclusion in the Lagos High Court which dismissed the suit of the Plaintiff on 20th March 1981. The Plaintiff then appealed to the Federal Court of Appeal and filed his Notice and Grounds on the 24th March 1981. On the 1st day of April 1982, before the appeal was heard and disposed of in the Federal Court of Appeal, the Defendant/Respondent died intestate. There was then an application to substitute his two children namely Taurid Sanusi and Alhaji Tajudeen Sanusi as Respondents for the purpose of prosecuting the appeal. The application was refused by the Court of Appeal Coram Kazeem: Nnaemeka-Agu and Mohammed, J.J.C.A. It was in explaining and giving reasons for the refusal of the Court to substitute the children of the Defendant/Respondent (since deceased) for their father Sanusi that Kazeem, J.C.A. (as he then was) referred to the maxim action personalis moritur cum persona and held:-
“In this case, if the right found in favour of the respondent had enured to the benefit of his estate, the persons sought to be substituted being persons who would inherit the estate of the respondent on his death intestate would have been proper persons to be substituted. ”
There was an appeal against this refusal to the Supreme Court. Mr. Lardner, S.A.N. appeared in that appeal for the Appellant and argued that the common law maxim “‘actio personalis moritur cum persona” no longer has any application in Lagos State. The applicable law, he continued, is Section 15 of the Administration of Estates Law cap 2 of the Laws of the Lagos State 1973 which expressly provided that:-
“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.
In a well-considered and illuminating lead judgment to which other justices of the panel concurred, my learned brother Obaseki, J.S.C. held that the cause of action did not die with Sanusi but survived against his estate.
I do not know why Mr. Anyamene cited and relied on this case. The facts of that case are very different from the facts of the case now on appeal as both Eyesan and Sanusi were alive when LD/208/75 (which came to the Supreme Court as S.C.107/82) was filed; both were alive when judgment was delivered by the Lagos High Court; both were alive when the appeal to the Federal Court of Appeal was lodged. Sanusi however died before the appeal was heard by the Federal Court of appeal and there was an application to substitute Sanusi’s two children. On the other hand, Patrick Nzom died 21 years before the Writ in this case (now on appeal) was filed. The application made in this case was not to substitute Margaret Nzom and Cyprian I. Obi for Patrick Nzom. No. The application was to add them as co-defendant along with Patrick Nzom. This application was granted. Secondly the decision of this Court in Eyesan’s case supra seems to be that Section 15 of the Administration of Estates Law of Lagos State now prevails over the anciest maxim actio personalis moritur cum persona. This decision is definitely against the contention of Mr. Anyamene.
It is very necessary to find out whether Writ of Summons filed against Patrick Nzom, deceased was in law null and void for if the answer is yes then the joinder of the 2nd and 3rd Defendants by the order of Desalu,will not give life to a dead Writ, still born as it were, for ex nihilo nihil fit and acere sorium sequitur principle. The 2nd and 3rd Defendants were added as Defendants to Patrick Nzom and an accessory thing goes with the thing to which it is accessory. So therefore if the Writ against Patrick Nzom was null and void, it will be void for all purposes and it will not admit any addition or accretion of more defendants.
Mr. Anyamene also cited to us the case of Tesi Opebiyi v. Shittu Oshoboja & anor. (1976) 9 & 10 S.C. 195. In that case the parties sued and were sued as representing respectively members of the Fagbile Family and Koaki Family both of Ijegun. The Plaintiff/Family asked and obtained an extension of time within which to appeal and leave to appeal on 25th March’ 1974 and the Court fixed the appeal for hearing on 15th April 1974,not knowing that the two Defendants representing the Koaki Family had died since 1967. The order of 25th March 1974 granting the Appellants in that case an extension of time within which to appeal and leave to appeal was thus made against the dead and non-existent respondents. The Court wondered how they were served. Like the case on appeal, Patrick Nzom could not be served personally. Service was by publication in the Daily Times Newspaper. In Tesi Opebiyi’s case supra an application was brought for an order for the substitution of Taiye Oshoboja for the dead Defendants/Respondents. Chief Williams, S.A.N. for the Respondents opposed the application on purely legal and procedural grounds. After hearing argument on both sides, the question for determination was:- What is the position in a case where, after judgment had been given in the Court below the Defendants before the Court had died
The Court answered the above question thus:-
“It seems to us that once all the defendants who defended the action for themselves and on behalf of the Koaki Family are dead, the action, provided it is still maintainable, could not continue until other persons have been substituted as defendant or defendants to carry on the representative action”.
It is on that basis namely that the action could not continue against dead Respondents that this Court further held:-
“Consequently, there is no appeal pending before the Court in respect of which Taiye Oshoboja could be substituted for the defendants who had died. Therefore the application for substitution is, in our view, misconceived and it is accordingly struck out.”
Mr. Anyamene relied heavily on the Court’s observation reproduced above. The question now is – are the facts of the case now on appeal on all fours with Tesi Opebiyi’s case supra The answer has to be no. Opebiyi’s case is distinguishable. In that case unlike the one now on appeal:-
i. Both parties were alive when the action was taken.
ii. Both parties were alive when judgment was given.
The only problem in Opebiyi’s case was that the order for extension of time within which to appeal was made when there were no Respondents to the said appeal as the original defendants who should have been the Respondents died before the Court’s Order for extension of time was made. The issue here is slightly different being whether a living Plaintiff can sue a dead defendant, a defendant who at the time he brought his action the Plaintiff did not know that he was dead.
This naturally leads on to the case of Skenconsult (Nig.) Ltd. & anor. v. Godwin Sekondy Ukey (1981) 1 S.C.6. At p.26 this Court held:-
“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
No one can doubt that service of a Writ is a sine qua non to effective and competent adjudication. But there are so many modes of service. The trial Court in this case (Patrick Nzom’s case) gave the plaintiff, S. O. Jinadu leave to effect substituted service by publication in the Daily Times Newspaper. This was done. Skenconsult’s case supra therefore does not address itself to live issue, the real question in controversy namely whether a Writ filed against a dead defendant is ipso facto null and void.
The next case relied upon by Mr. Anyamene was Nigerian Nurses Association and anor. v. Attorney-General of the Federation & 2 Ors. (1981) 11-12 S.C.1. The question raised by this appeal was the legal existence of the Plaintiffs/Appellants to give them competence to sue the Defendant/Respondent in the Court of first instance. By the provision of the Trade Union (Amendment) Decree 1978, now Act, 1978; the Plaintiffs/Appellants had ceased to exist as legal persons capable of suing or being sued at the time they instituted the suit and therefore the judgment of the High Court in their favour was given per incuriam. Patrick Nzom was not the Plaintiff in the case now on appeal. He was sued as a Defendant. But then he had ceased to exist as an ordinary human being. The Nigerian Nurses Association was a legal persona as opposed to an ordinary human person. It is true that the dissolution of legal persona is analogous to the death of an ordinary human person. Now dead men are no longer persons in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be used. This was the common law view but so many Statutes have intervened that one will be very slow to pontificate or be dogmatic. The question will now be whether or not there are any statutory provisions applicable to Lagos State, the situs of the land in dispute, giving S.O. Jinadu (the Plaintiff who took out the Writ of Summons in the case) the right to sue Patrick Nzom deceased.
Mr. Anyamene answered the above question in the negative and referred the Court to the case of Dawson (Bradford) Ltd. & Ors v. Dove & anor (1971),1 All E.R. 554. The facts of Dawson’s case supra come closest to the facts of this case. Three Writs were issued against Dawson deceased. By amendment the executors of late Dawson were made defendants. These executors then took out summonses to set aside the Writs on the ground that Dawson was already dead when those Writs were issued. The contention in Dawson’s case was that where a Writ has been issued against a dead man there is no power under the rules of Court to amend the Writ by substituting the executors in place of the deceased. The portions I italicized above forcibly brought out the central issue in Dawson’s case which issue is also the crux of the matter in this case. In Dawson’s case supra, Mackenna, J. reviewed the relevant and existing Rules of the Supreme Court in England and the cases of Clay v. Oxford (1866) L.R.2 Exch. 54 and Tetlow v. Orela Ltd. (1920) 2 ‘Ch. 24 and held that the three Writs issued against Mr. Dawson be set aside on the ground that when they were issued Mr. Dawson was already dead. Dawson’s case offers the strongest support for Mr. Anyamene’s contention.
I will now turn to Mr. Lardner’s arguments in support of his proposition that the Writ in this case issued on 10/2/73 against Patrick Nzom who died in 1949 was and still remains a valid Writ. I will say straight away that I agree with Mr. Lardner that at this stage the Court should not concern itself with the merits or demerits of the Plaintiff’s case nor with its eventual outcome. What is in issue now is whether or not the Writ commencing the action against Patrick Nzom deceased was valid or null and void ab initio. Mr. Lardner then referred to the Practice and Procedure at the High Court of Lagos State as provided for by Section 12 of Cap 52 Laws of Lagos State 1973. This Section provides:-
“12. The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other enactment, or by such rules and orders of Court as may be made pursuant to this or any other enactment. and in the absence of such provisions in substantial conformity with the practice and procedure for the time being of the High Court of Justice in England”.
Mr. Lardner then submitted that since no local rules have been made covering the point now in issue namely, whether a Writ issued against a deceased/defendant is valid or null and void ab initio recourse will have to be had to the Rules of the Supreme Court of England especially to Order 15 Rule 6A thereof.
The English Rules of the Supreme Court Order 15 Rule 6A sub-rule 3 stipulates:-
“6A-(3) An action purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate ….. whether or not a grant of probate or administration was made before its commencement” .
By the above the fact of death before the commencement of an action does not necessarily render the Writ null and void. But one has to look at the rule more closely. The white Book considered at p.186 the Effect of the rule as follows:-
(i) One effect is that the rule does not apply to an action begun in the name of a dead man as plaintiff. Such actions still remain nullities. In other words Clay v. Oxford supra and Tellow v. Orela Ltd supra both still remain good law.
(ii) Another effect of the rule and one very apposite to the issue calling for determination in this appeal is 15/6A/3 sub nomen
“15/6A/3 – If at the time an action is brought the person against whom it is brought is already dead, if the cause of action survives his death the action must be treated as having been brought against his estate; the action will no longer be a nullity”.
The above effect reverses the decision in Dawson (Bradford) Ltd. v. Dove supra.
Mr. Lardner appears to be batting on a very strong wicket here having bowled out Dawson v. Dove supra on which Mr Anyamene constructed his attack on the Writ now in dispute. But how strong really is Mr Lardner’s wicket In my view for Order 15 Rule 6A sub-rule 3 to apply the following conditions must co-exist.
Condition No.1:
That at the time the action was brought the defendant was dead.
This condition was satisfied in this case. The present Writ was issued on 10/2/73 whereas Patrick Nzom was alleged to have died in 1949. The Plaintiff had not challenged the averments in the various affidavits stating that Patrick Nzom died in 1949. I therefore take that fact as admitted on all sides. Desalu, 1. at p.114 of the record held that the “1st Defendant (Patrick Nzom) died before the institution of this action”.
Condition No. 2:
That there was a cause of action against the defendant before his death.
Condition No.3:
That, that cause of action survived his death.
I did not comment on Condition No.2 until I had stated Condition No.3 because the wording of R.S.C. 15/6A/3 did not expressly use those words but it is my view that Condition no.2 must exist before Condition No.3. One cannot logically or even possibly talk of a cause of action surviving death if there were no cause of action either before or at the time of death. The word survive simply means to outlive, to live beyond the life of, to live longer than. to out-last etc. A cause of action cannot live longer or last longer than the defendant if it did not exist when the defendant was alive. Now applying the above to the facts of this case, as can be gathered from the Writ, not the merits, but just the bare facts on which the Writ was issued, one discovers that:-
- The land the subject matter of the action is the hereditaments situate at No. 39 Seriki Avenue Ikeja.
- The Plaintiff is the bona fide owner of No.39 Seriki Avenue Ikeja by a registered Conveyance dated 31st December, 1960.
- Immediately the Nigerian Civil War ended in 1970, J.C. Nzom unlawfully took possession of the said premises and starred to collect rents there at and was collecting until he died in June 1972.
From the above, it is obvious from the facts disclosed in the Writ of Summons that J.C. Nzom was the tort feasor. The Plaintiff had a cause of action against him when he was alive. If he died, as he did in 1972, that cause of action will survive him. If the present Writ issued on 10/2/73 were issued against J.C. Nzom, it will be saved by R.S.C. Order 15 r.6A(3). But Patrick Nzom died in 1949 long before the conveyance dated 31st December, 1969 which gave the Plaintiff his title to the property at No. 39 Seriki Avenue Ikeja “the unlawful possession” of which gave the Plaintiff his cause of action. Patrick Nzom died before the Plaintiff became the owner of No.39 Seriki Avenue and before the tort complained of by the Plaintiff was committed in 1970. In my view, from all the facts clearly stated in the Writ of Summons in this case, the Plaintiff had no cause of action whatsoever against Patrick Nzom. There was therefore no cause of action that could or did survive his death. Order 15 r.6A sub-rule 3 is therefore not applicable to Patrick Nzom.
On the face of the Writ at page 5 of the record of proceedings Patrick Nzom was sued (for himself and on behalf of the family of J.C. Nzom deceased). The question now is – Will this make any difference to the legal position The short answer is that dead men are no longer persons in the eye of the law. The personality of a human being is extinguished by his death.
A dead man cannot therefore represent the family of another dead man especially when, as in this case, Patrick Nzom died 22 years before J. C. Nzom. The position is that as a Writ issued on 10/2/73 against Patrick Nzom who died in 1949, that is 21 years before the trespass complained of, the Writ is null and void. As a Writ issued against Patrick Nzom representing the family of J.C. Nzom, deceased, the Writ was also null and void. As a Writ issued against the estate of Patrick Nzom it runs counter to the averments in the Writ itself as the estate of Patrick Nzom had nothing whatsoever to do with the facts stated in the Writ. There is absolutely nothing on the Writ to suggest that it was issued against the estate of J.C. Nzom as opposed to one issued against “the family of J.C. Nzom”.
In the final result, I hold that the Writ in this case is null and void. I also hold that the joinder granted by Desalu, J. must also to that extent for that reason be null and void as something cannot be added to nothing. For the above reasons, I will allow this appeal and set aside the judgment of the Court below as well as that of the trial Court. There will be costs to the Appellants in this Court which I assess at N300.00 and in the Court below assessed at N150.00 and in the Court of first instance assessed at N150.00.
SC.113/1985
