Wuraola Abeo & Anor V. Toye Ogunyemi & Ors (1990)

LawGlobal-Hub Lead Judgment Report

SULU-GAMBARI, J.C.A. 

This is an application to relist an appeal struck out for what looked like want of diligent prosecution by the appellants. When the case came up for consideration before this court, counsel for the appellants appeared in court only to inform the court that the two appellants have died and they had no further instructions on the matter. This court therefore struck out the case accordingly on the 28th day of January, 1988.

The facts deposed to in the affidavit in so far as they are relevant to this application are as follows:-

“4. The High Court in a judgment delivered on 20th July, 1979 dismissed the plaintiffs’ claim with N600.00 costs.

5. The appellants on being dissatisfied with the judgment lodged an appeal against the same by Notice of Appeal dated 9th October, 1979 and duly perfected all the conditions of appeal imposed on them by the Registrar of the High Court.
6. The 1st Plaintiff/Appellant died on 15th October, 1984 aged 105 years whilst the 2nd plaintiff/appellant died on 10th August, 1983 aged 115 years. I attach hereto a photocopy each of their death certificate and mark them Exhibits A and B respectively.
7. Sometime in May 1989, due to the activities of the Respondents on the land in dispute, I instructed Lawyer Bayo Lawal to find out the position of the appeal which the deceased plaintiffs/appellants had lodged against the judgment of the High Court in these proceedings.
8. I was then informed by the said Bayo Lawal, Esq., and I verily believe that his enquiries revealed that the appeal was struck on 28th January, 1988 by the Court of Appeal. The said Bayo Lawal required me to provide filing fees for my further instruction that he should make the necessary application to restore the appeal in the court’s list.
9. When I was finally able to do so in September 1989, an application was filed on my behalf in the Court of Appeal to relist the appeal.
10. I have since sought further advice on the matter from O.A. Abiose, Esq., Legal Practitioner, who had conducted further enquiries into the circumstances leading to the striking out of the appeal on 28th January, 1988.
11. The said O. A. Abiose’s enquiries revealed as follows:-

(i) that a Hearing Notice dated 25th November, 1987 was issued by the Registry of the Court of Appeal for service on the Appellants c/o their Solicitor, Messrs Akinjide & Co. The Notice was to the effect that the appeal would be listed for hearing on 20th January, 1988.

ii) the Hearing Notice was served on R.A. Ogunwole & Co. on 27th November, 1987;

iii) that when the appeal came up on 28th January, 1988, one Mrs. O.O. Olowookere from the Chambers of R.A. Ogunwole & Co. appeared for the appellants and informed the Court that she had no instructions from the Appellants to prosecute the appeal consequent upon which it was struck out.

16. I attach hereto a Certified True Copy of proceedings of 28th January, 1988 and the Ruling of the Court of Appeal striking out the appeal and mark same Exhibit C.
17. At the time the Hearing Notice afore-mentioned was issued the two Appellants on record were dead.
18. Neither myself nor any other members of my family were contacted by R.A. Ogunwole, Esq. or any member of his Chambers about the pending appeal at all material times (presumably because they did not know how to locate us) and as such we were not aware of its fixture in order to make adequate arrangements to instruct a solicitor to prosecute the appeal on our behalf.
19. The entire members of the Adesina Family are very much interested in prosecuting the appeal and I have been mandated to take necessary steps to restore and prosecute the same.
20. I am informed by O.A. Abiose, Esq. (to whom I have delivered the Record of Appeal) and I verily believe that the appeal is most likely to succeed.
21. I am also informed by O.A. Abiose, Esq. and I verily believe that in addition to the Grounds of Appeal set out in the Notice of Appeal, he proposes to urge on our behalf the additional grounds of appeal set out in the document annexed hereto and marked Exhibit C1 in the event that the appeal is re-entered for hearing.
22. I am further informed by O.A. Abiose Esq. and I verily believe that an order of this Honourable Court directing that I be substituted for the deceased Appellants on record will also be necessary should the appeal be re-entered for hearing.

The cardinal point relied upon by the applicant for asking for the discretion of this court to relist the matter was the fact that though counsel for the appellants were served with hearing notice, the two appellants have died at the time the notice was effected and none of the members of the appellants’ family were aware or made aware by the counsel to the appellants of such notice.

Learned counsel for the applicant asked for two things: that the appeal be restored or be re-entered for hearing and also that Bintu Ejide, the daughter of the 1st plaintiff/appellant who claimed to have been mandated by the other members of the family to take necessary steps to restore the appeal and prosecute same, be substituted for the plaintiffs/appellants since the two plaintiffs/appellants instituted their claim and lodged the appeal for themselves and on behalf of the Adesina Family. It is claimed that the members of the Adesina Family have therefore authorised the applicant to pursue the appeal for and on behalf of the family. This claim of representation by the applicant had not been controverted or challenged in the counter-affidavit. Since it has not been controverted or challenged, that deposition with respect to the authority of the family to pursue the matter claimed by the applicant stands as an undisputed fact. See Alagbe v. Abimbola (1978) 2 S.C.39.

Learned counsel for the respondents in this application seriously contended that the application is mis-conceived because, according to him, since the appeal had been struck out on the 28th January, 1988, the applicant had no locus standi to bring the application for relisting the same appeal. He stressed that it would have been a different matter if the appeal is still subsisting and the applicant brings an application to be substituted for the dead parties or joined as a party.

I think what must be considered first is whether the present applicant can be substituted for the appellants who had died to continue the appeal for herself and on behalf of Adesina Family. The competence of the applicant to be substituted for the dead appellants is not being challenged nor is it challenged or controverted that she had no authority of the Adesina Family to bring the application. To say that there are direct male descendants of the Adesina Family who could have applied to continue with the appeal as contended by the respondents is not tantamount to saying that such male descendants alone and not the applicant are competent to bring the application for substitution.

The position in my respectful view is that if the deceased appellants could be allowed to bring an application for relisting the appeal already struck out for any valid reason and re-entered for good cause, it follows therefore that the applicant if properly substituted for these deceased appellants can also exercise the right exercisable by the persons for whom she is seeking to be substituted. In other words, if the appellants are alive and for some reasons the appeal was struck out, they may be allowed to bring an application to relist the appeal upon showing good reasons. Equally, any person substituted for or seeking to be substituted for them may also have the right to ask the court to relist the matter and that the discretion be exercised in his or her favour.

Since the competence of the applicant to apply is not being challenged, I am of the view that the application seeking that the applicant be substituted for the deceased applicants is in order and should accordingly be granted and I so do.

Having granted the substitution order, the next matter to be considered is whether on the merit of this application, this court would be right to relist the matter that has been struck out based on the materials before the court.

The facts which emerged from the affidavit supporting the application were that the appeal had been lodged before the appellants died; the certificates of the cause of death were affixed to the affidavit. The 1st appellant died on the 15th October, 1984 while the 2nd appellant died on the 10th August, 1983 and the appeal had been lodged since 9th October, 1979. As at 28th January, 1988 when the appeal was struck out by this honourable court, it is incontrovertible that the deceased have died before that time.

It therefore follows that as at the time the hearing notice was issued to the appellants through their counsel and when the counsel said that they could not be briefed, the two appellants have actually been certified dead. It was the contention of the learned counsel for the applicant that neither was the applicant herself nor any member of the family contacted by Mr. R.A. Ogunwole or any member of his chambers about the pending appeal at the material time and as such they were unaware of its fixture so as to make adequate arrangement to instruct a Solicitor to prosecute the appeal for and on behalf of the family.

In considering application to relist a case, the following points have to be examined:-

(i) The reason for the applicant’s failure to appear when the case was heard.

(ii) Whether there has been undue delay in making the application so as to prejudice the respondent.

(iii) Whether the respondent would be prejudiced or embarrassed upon an order for re-hearing being made so as to render it inequitable to permit the case to be re-opened.

There is the intention on the part of the family to pursue their appeal.

The reason for the appellants’ failure to appear was simply due to the fact that it cannot be said that they were aware or made aware of the date the case was fixed for hearing before this court. There is no evidence of any inordinate or undue delay on the part of the applicant in making the application for relistment since the application was brought timeously and less than a year after the order striking out the appeal was made. It cannot be said and there is no evidence that can be gathered in this application that the respondents would be embarrassed by the relistment of the case for hearing. Embarrassment would ordinarily result where the rights of third parties have intervened.

See Harley V. Samson (1940) 30 T.L.R. 450. There is no evidence of any such intervention of rights and the onus is in any case on the respondents to show that any such right has intervened. See Idam Ugwu v. Nwaji Aba (1961) All NLR 438.

In the circumstance, I would reiterate my earlier order, that is, that Bintu Ejide is hereby ordered to be substituted for the deceased plaintiffs/appellants and to continue to prosecute the appeal for herself and on behalf of Adesina Family. It is also further ordered that the appeal which was struck out by this Honourable Court on the 28th day of January, 1988 be and is hereby restored for hearing and determination. The applicant should pay costs of this application assessed at N100.00 to the respondents.

Other Citations: (1990)LCN/0103(CA)