Momoh Wokili Ndasuko & Ors V. Adamu Mohammed & Ors (2007)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
This is an appeal against the decision of Hon. Justice M.A. Medupin of the Kogi State High Court sitting at Koton-Karfe delivered on 20/10/95 in which Judgment was entered for the Plaintiffs.
The- Plaintiffs claim before the lower Court reads:
“Whereof the Plaintiffs claim against the Defendants jointly and severally:
i. A declaration that the first Plaintiff is the rightful person to occupy the vacant title of Ogaza- Ogbani having been selected by the quarters having the right or turn to occupy the vacant Stool.
ii. A declaration that the installation of the Defendants as the Ogaza-Ogbani of Koton-Karfe as carried out by the 2rd and 3rd Defendants is null and void as it was not proceeded by the due selection by any quarters.
iii. An order of perpetual injunction restraining the 1st Defendant from forwarding himself as the Ogaza-Ogbani of Koton-Karfe.
iv. An order of perpetual injunction restraining the 2nd and 3rd Defendants from dealing with or recognizing the 1st Defendant as the Ogaza-Ogbani of Koton-Karfe.”
The facts of the case presented at the trial Court are briefly stated as follows. The Plaintiffs instituted the action against the Defendants jointly and severally contending that the 1st Plaintiff was the selected candidate for the Stool of Ogaza-Ogbani and that he was duly presented to the 2nd Defendant en-route the 3rd Defendant but instead the 2nd Defendant via the 3rd Defendant appointed the 1st Defendant as the Ogaza-Ogbani. The Plaintiffs at the trial court contended the stool of Ogaza Ogbani is for the free born of Koton-Karfe and that since the 1st Defendant is not a free born of Koton-Karfe, his appointment to the stool was null and void.
The Defendants-on their part contended that upon the demise of the last Ogaza-Ogbani the 2nd Defendant via the 3rds Defendant called for the filling of the post vide the family/clan head of Kpokpozi – late Mohammed Dangara to nominate a person to fill the post.
The 1st Defendant was selected by the said Ohogabi Quarters and taken by the said Dangana to the 2nd Defendant en-route the 3rd Defendant.
They contended that the 1st Defendant is a free born of Koton-Karfe, whose parents have a close affinity with the 3rd Defendant the Madaki of Koton-Karfe who is next to Ohimege Iguh of Koton-Karfe, the 2nd Defendant.
The Defendants contended that the 1st Defendant is not a stranger, and that he holds the title of Otamabo a Superior and respected title and can even deputize for the Ogaza-Ogbani and that the title is not given to strangers. The Defendants also named other titles held by the ancestors of the 1st Defendant.
During the trial upon an application by Counsel for the Defendants the names of the 2nd and 3rd Plaintiffs were struck out as they had no locus standi in the matter. The 3rd Plaintiff after he has been struck out of the case gave evidence as PW2.
The learned trial Judge granted the reliefs sought by the Plaintiffs in the Judgment he delivered on 20th day of October, 1995.
Dissatisfied with the said Judgment the Defendants who are now the Appellants appealed to this Court.
The Appellants’ brief of argument dated 2/4/98 was filed on 6/4/98.
When this appeal came up for hearing on 15/1/2007, learned Counsel for the Appellants told the Court that they are adopting the Appellants’ brief of argument and have presented four issues for the determination of the Court, as follows:
“1. Whether the trial Court was justified in relying on the evidence of 3rd Plaintiff as a witness when he had been struck out by the same Court from the Suit.
- Whether the trial Court was right in believing and disbelieving two witnesses at the time in the same suit.
- Whether the trial Court judgment properly resolves the issues in controversy as raised in the pleadings and evidence adduced.
- Whether the trial court properly evaluated the evidence before it and made the appropriate interference therein.”
I have earlier said in this Judgment that the names of the 2nd and 3rd Plaintiffs/Respondents were struck out on the application of the Defendants/Appellants while at the trial Court. The 1st Plaintiff/Respondent in whose favour Judgment was given by the trial Court which is now the subject of this appeal, died before the hearing of this appeal.
Under our law a dead person ceases to be a legal person or to have legal personality and as such he can neither sue or be sued personally or in a representative capacity, for he ceases to be a legal
person.
In Nzom v. Jinadu (1987) 1 NWLR pt. 51 page 533 at 541 the Court said:
”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 right or interest they can neither sue nor be sued.”
The question to ask in this appeal is, can a dead person (who cannot be sued personally) defend a Judgment in his favour while alive but which afterwards became a subject of an appeal?
The answer to this question has been provided by the Supreme Court in a similar situation in the case of Opebiyi v. Oshoboja & Anor. (1976) NSCC Vol. 10 page 538 at 540 where Fatai-Williams J.S.C. said:
The next question is this. What is the position in a case where, after judgment had been given in the court below, the defendants before the court had died? 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. Because of this, the order granting the plaintiffs extension of time within which to appeal and leave to appeal, when there were no respondents to the application, is to our mind, null and void and of no effect whatsoever. [ See Lazard Bros. v. Midland Bank (1932)1 K.B. 617 at p. 624 (C.A.)]. Consequently there is no appeal pending before the Court in respect of which Taiye Oshoboja could be substituted for the defendants who had died.”
The position of the Jaw on the effect of death of a party to an appeal has been elucidated by the Supreme Court in the case of In Re: Otuedon (1995) 4 NWLR Pt. 392 Page 655 at 667. Per Iguh J.S.C.
”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 ceases 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 page 533 and Clement Ezenwosu v. Peter Ngonadi (1988) 3 NWLR pt. 81 p.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.”
The appeal at hand pertains to a chieftaincy dispute. A chieftaincy title is personal to the conferee of the title.
In an application by the Appellants/Applicants dated 28th March 2003 and filed on the same day they prayed the Court for some reliefs which were granted on 13/6/2006. Their prayers read as follows:
“1. An order of Court striking out the name of the 1st Respondent Adamu Mohammed (Deceased) from this Appeal.
- An order granting leave to the Appellants/Applicants to argue this appeal ex parte on the Appellants brief of argument alone dated the 2nd day of April 1998 and filed on the 6th day of April 1998 in the absence of any Respondents brief being filed.
- And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”
In support of the application is a 15-Paragraph Affidavit. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, and 14 are pertinent and they are hereby adumbrated as follows:
- That I was informed by the 1st Appellant/Applicant Momoh Wokili Ndasoko in my Chambers sometime on the 19th of April, 2001 at about 2p.m. of the following facts and I verily believe him:
(a) That the 1st Respondent in this Appeal Adamu Mohammed is dead.
(b) That the said Adamu Mohammed died sometime in June 1998 after this appeal had been filed.
- That I know that after the death of the said Adamu Mohammed, Appellants’ Counsel brought several applications the last of which was dated 21st June 2001 and filed on 22nd June 2001 for the purpose of substituting the name of the deceased with that of another party.
- That all effort to bring about the said substitution proved abortive as the last of the said applications was struck out by this Honourable Court on 22nd of June 2002.
- That it would be in the interest of justice to strike out the names of the 1st Respondent Adamu Mohammed who is deceased from this Appeal to enable the appeal be heard.
- That I know that the Appellant’s Brief of Argument in this appeal dated 2nd day of April 1998 was filed in this Court on 6th day of April 1998.
- That I also know as a fact that the said Appellant’s Brief of Argument was served on the 2nd and 3rd Respondents on the 10th day of February 1999, through their Counsel Funsho Agbana & Co. of No. 83 Murtala Mohammed Road, Lokoja Kogi State.
- That I know that since then, the 2nd and 3rd Respondents have not seen the need for them to file any Respondent’s brief in this Appeal.
- That I also know that the time allowed by the rules of court For the Respondents to file their Respondents’ brief has long elapsed.
- That leave of this Honourable Court is required for this appeal to be heard based on the Appellants’ Brief of Argument alone in the absence of any Respondent’s Brief.
- That the grant of this application would not prejudice the Respondents in any way.
- That it would be in the interest of justice to grant this application.”
It is clear from the depositions in the Affidavit in support of the application that the appellants attempted to substitute another respondent for the 1st Respondent who is dead, but were unsuccessful.
There was no other application from any interested party or person seeking to be substituted for the deceased.
The 2nd and 3rd Respondents have also not appealed against their exclusion as Plaintiffs by the trial Court.
The question to ask is whether there can be a competent appeal before this Court, in the absence of Respondents? The answer is in the negative – No. I am of the opinion that it is only when there is a competent appeal that the court can look into the issues formulated for its determination. However, in the absence of a competent appeal, it would be an imprudent and wasteful exercise of the Court’s jurisdiction to embark on the consideration of such issues.
In this appeal only the Appellants formulated issues for determination.
I have earlier indicated in this judgment, that the 1st Respondent is dead. The 2nd and 3rd Respondents, on whom the notice of Appeal and the Appellants’ Brief of Argument were said to have been served through Counsel, are not proper parties because their names have been struck out for lacking the necessary locus Standi. They never appeared before this Court nor were they represented.
The application by the Appellants to make the 2nd and 3rd Plaintiffs as Respondents to this Appeal was refused by this Court and there is no appeal to a higher Court on the issue.
In the absence of all the contesting parties to a dispute being present or properly represented before it, a court of law cannot properly be said to be discharging its primary duty of dispensing even justice.
Equally a court will not also be exercising its jurisdiction judicially and judiciously if it listens to only one party to a dispute in the absence of the other.
Order 1 rule 2 of the Court of Appeal Rules 2002 defines a respondent thus:
“respondent” in a civil appeal means, any party (other than the appellant) directly affected by the appeal. “Since a Respondent in this Court is any party other than the Appellant, directly affected by the appeal, it follows therefore that where there is no Respondent(s) there will be no competent appeal.
On the duty of an appellate court in relation to a deceased party the Supreme Court in the case of Ezenwosu v. Ngonadi (1988) 3 NWLR Pt. 81 page 163 at 182 -183 said per Oputa, J.S.C.:
“There is no doubt that Courts exist to do justice. But then it is not abstract justice but justice according to the law and Rules of procedure. It is also justice between the parties before it – proper parties that is.
There is no obligation on any Court to do justice between a party and a non-party. There is also no duty on any Court to do justice between the living and the dead. It is true that justice can only be done by examining the substance of the matter and by paying but scant reliance on technicalities:- State v. Gwonto (1983) 1 S.C.N.L.R.142 at p. 160. That has been the policy of this Court. But that policy presupposes that proper parties are before the Court.
Dead men do not appeal.”
Since there is no Respondent(s) to this appeal, this Court will not belabour itself examining the issues presented for determination. The appeal is incompetent and ought to be struck out, and it is hereby struck out accordingly. There will be no order as to costs.
Other Citations: (2007)LCN/2234(CA)
