Obi Nwanze Okonji & Ors. V. George Njokanma & Ors (1989)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

In this matter, there were two applications before the Court. We dealt with both on 13th June and reserved our reasons for the decisions we took in both. It would be better to go through each motion as one is sequel to the other.

As a preliminary, it is necessary to state few facts. The plaintiffs to the action are:

George Njokanma; Amolo Onwugbenu; and Anthony Ogbogu.

They took the action in a representative capacity “for themselves and on behalf of Ogbeide Family”. The action was against-

Okwonkwo Okonji; George Nwanze Okobi; and Onochi P. Eseji.

These were sued in a representative capacity “for themselves and on behalf of Umuodogun Family Ogboli Ibuse”. Indeed they were “substituted as such for the original defendants”, who had died. These original defendants died one after the other and the last of them died on 7th December, 1988.

It was not until 21st March, 1989 that an application was made to substitute the present defendants for those deceased original defendants.

But the matter is not as straight-forward as all that, for, on 13th February, 1989, that is five weeks before that application for the substitution of the defendants, the plaintiffs had filed an application seeking an order to strike out the defendants notice of appeal to this Court on the ground of abuse of process. That abuse was stated in what the plaintiffs stipulated as issues for determination to wit.

2.1 “How does the law view the posture of an action when it is brought against multiple defendants and all of such defendants die during the pendency of the action and the cause of action survives their death

2.2 In such circumstances does it make any difference in law that the defendants are defending in a representative capacity

2.3 In the circumstances set out in para. 2.1. above what is the effect of filing an application other than an application to substitute fresh defendants to carryon the proceedings”

And so, when Chief Olisa Chukura, S.A.N’s motion dated 13th February, 1989 sought an order to strike out “the proposed notice and grounds of Appeal filed by the defendants as appellants” Mr. H.A. Lardner met him with preliminary objection to the effect that the motion be struck out for the following reasons.

“1. BECAUSE the action herein abated and became defective upon the death of all the defendants by such abatement the action ceased to be properly constituted in that there was no defendant on the record who could resist the plaintiffs’ claim, the proceedings being in their nature hostile;

2. BECAUSE the only applications then available to the plaintiffs were applications for the purpose of curing the defect in the suit by substituting fresh parties or preserving the subject-matter of the litigation pending the substitution of parties;
3. BECAUSE at the time of filing the application to dismiss this Court would not itself justiciate on it as there was no respondent then alive;
4. BECAUSE the authority of the defendants’ legal practitioner to accept service of any application other than those stated above is revoked by the death of all his clients on the record;
5. BECAUSE service of a motion or other process on any member of Umuodogun Family after the death of their last surviving representative would be invalid and a fortiori, service of such process on the Family’s counsel would also be invalid;
6. BECAUSE subsequent substitution of some members of the said Family cannot relate back and convert delivery of a copy of the motion to their Family’s counsel into valid service on them;
7. BECAUSE the filing of a motion is a nullity;
8. BECAUSE the service thereof is a nullity.”

The question that must be answered is whether or not an appeal in a representative action abates on the death of all the parties named in that process. In Atanda v. Olanrewaju (1988) 4 N.W.L.R. (Pt.89) 394 this Court dealt with the same issue and gave a clear answer thereto. Oputa, J.S.C., said in his lead judgment which was concurred with by all the other members of the Court.

“Every appeal needs the presence of parties to prosecute it. So when an appeal has been properly filed, on the death of the appellant, the appeal still subsists but it will need the substitution of a living party or an application of a person interested under Section 222(a) of the 1979 Constitution to be made a party in order to prosecute the said appeal. In Ezenwosu v. Ngonadi supra, Clement Ezenwosu sued Aaron Ngonadi for a declaration of title and injunction. Ngonadi was sued in his personal capacity and not, repeat, not in a representative capacity. The plaintiff, Clement Ezenwosu, won. An appeal was filed in the name of Aaron Ngonadi on 7/4/77. It was then discovered that Aaron Ngonadi died on 4/3/77. The appeal was therefore incompetent as a dead man having no legal personality could not have lodged a valid appeal. Aaron Ngonadi’s son Peter Ngonadi as a person interested then applied under Section 222(a) of the 1979 Constitution to exercise the right to appeal to defend the property in the land claimed by his late father. His application was granted.

In Ezenwosu v. Ngonadi there was no competent appeal pending but there was a right to appeal which could under Section 222(a) of the 1979 Constitution be exercised by “any other person.” A distinction ought to be drawn between “any other person” and “any other party.” In a representative action both the named plaintiffs or appellants and those they represent (the unnamed plaintiffs/appellants) are all parties. If the named appellants die, the appeal does not die and any of the unnamed appellants would then be let in as persons represented to prosecute the appeal. These unnamed appellants will not need to apply for extension of time or leave to appeal for their appeal was already pending.”

I think this pronouncement is explicit enough. 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 and against those the named parties represent. Those are not stated nomine. Indeed, they may be one or two or more, indeed they may be legion. And so, if all the named parties die the action still subsists on behalf of 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 or the appeal, again, as the case may be, cannot be prosecuted until a living person has been substituted for the named dead party.

Now it has to be noted that a named party in a representative action is dominus litis. It is for this reason that care is always taken in choosing the representative. The named party, dominus litis as he is, remains so until judgment and in that case, he could discontinue, compromise, submit to dismissal just as he pleases. But where several people sue, they have like powers and if they are not satisfied with the conduct of the representative they may seek an order of the Court to add or substitute any other person even though he has not been named in the representative action. In Moon v. Atherton (1972) 2 Q.B. 435, this was done even where it prevented the action from being statute barred.

For this reason the preliminary objection of Mr. Lardner failed and I dismissed it.

In regard to the application itself, that is the application filed by Chief Olisa Chukura, S.A.N., on 13th February, 1988 seeking an order to strike out the “proposed notice and grounds of appeal” filed on 16th July, 1986, it has been discovered and agreed to by learned Senior Advocate himself that a Notice of Appeal was filed within time. The judgment of the Court of Appeal was given on 21st May, 1986 and the notice of appeal was filed on 16th July, 1986, which makes the filing still within time.

Now, I have examined the grounds of appeal and I have concluded that ground 3 of the grounds which reads-

“The learned Justices of the Court of Appeal erred in law in that portion of their judgment as follows:-

There was evidence that the said witness (OBIDI) in the previous 1931 proceedings was dead, contrary to suggestion of appellants’ Counsel in his brief that there was no such evidence. If he were alive at the time of the proceedings in the present case, he would have had to be produced to give evidence and be cross-examined on his past admission. But as it turned out during the trial at the Lower Court, he was already dead by that time.’

PARTICULARS OF ERROR

(i) The complaint of the appellants on the admissibility of EXHIBIT ‘B’ was that at the stage when the evidence of OBIDI was sought to be tendered; no foundation was laid as to the whereabout of OBIDI in order to satisfy the conditions laid down for admissibility of such evidence under Section 20 of the Evidence Act or Section 33 thereof.

(ii) It was not open to the learned Justices of the Court of Appeal and indeed of any Court to Speculate upon matters which there was no evidence as evident in the portion of their judgment quoted.”

is clearly a ground of law. It means therefore that this being a ground of law and having been filed within time the appellants have exercised their constitutional right and there is an appeal before this Court. The application of Chief Chukura therefore failed and it was dismissed.

I now come to the application made by Mr. H.A. Lardner, S.A.N., on behalf of the appellants and that is: “(a) an Order substituting them for the deceased defendants/appellants to carry on as appellants the appeal herein for themselves and on behalf of Umuodogun Family;

(b) an Order granting them extension of time to file their appellants’ Brief of Argument or, alternatively, an Order fixing the time within which they shall file their Brief of Argument; and (c) such further and/or other Order or Orders as may seem fit in the circumstances of this case.”

There are sufficient ground; shown for the granting of this application. The last surviving of the appellants nomine died on 7th December, 1988. The record of appeal was collected on the 5th January, 1989. On the uncontroverted facts before this Court, it is clear that the applicants have only been five days out of time before seeking an extension to file the appellants’ Brief.

This cannot by any means amount to inordinate delay. For this reason this Court granted the extension of time sought and the Court ordered that the appellants’ Brief be filed and served on or before 13th July, 1989 while the respondents’ Brief would be filed within the normal time prescribed by the Rules of this Court thereafter.

All the above were my reasons for the conclusions I reached on 13th June, 1989.

SC.35/1989