I. O. Eyesan V. Y.O. Sanusi (1984)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

The appellant herein was the plaintiff in suit No.LD/208/75 he instituted against Y.O. Sanusi in the High Court of Lagos State, Lagos Judicial Division on the 25th day of February, 1975. In that suit, he claimed:

“(1) N100.00 general damages for trespass committed by the defendant, his servants and or agents on the plaintiff’s land situate at Toye Kuti Street, Igbobi, Lagos State, edged green on the plan No.A1/1975 filed along with the statement of claim covered by certificate of purchase dated the 7th day of February, 1972 and registered as No. 58 at page 58 in volume 1389 of the Register of Deeds in the office at Lagos,

(2) An order of perpetual injunction restraining the defendant, his servants and/or agents from further trespass to the said land”.

Pleadings were filed and duly served and the issues joined came up for hearing before Ademola Johnson, J. At the conclusion of the hearing, he delivered a well considered judgment wherein he dismissed the suit on the 20th day of March, 1981. Being dissatisfied with the decision, the plaintiff filed his notice and grounds of appeal to the Federal Court of Appeal on the 24th day of 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. This Court was informed at the hearing of this appeal that letters of administration have since the death not been applied for or taken out to administer the estate of the deceased. In view of the death of the defendant, the plaintiff/appellant applied by motion to the Federal Court of Appeal for an order “that the respondents (1) Taurid Sanusi and (2) Alhaji Tajudeen Sanusi (for themselves and on behalf of the family of Y.O. Sanusi deceased) be substituted in place of the defendant/respondent in the appeal”.

Paragraphs 3, 6 7 and 8 of the affidavit filed in support of the motion contain the most pertinent and relevant facts relied on by the appellant who was the deponent. They read:

“(3) That the defendant, Yesufu Olorunsola Sanusi died in Lagos on the 1st April, 1982 after the appeal herein was entered in this Honourable Court;

(6) That I have made enquiries as to the defendant’s children and discovered that one Mr. Taurid Sanusi of the Federal Government Press, Lagos is the eldest child of the deceased and now Head of his family;

(7) That one Alhaji Tajudeen Sanusi gave evidence as a son of the defendant;

(8) That I verily believe that Taurid Sanusi and Alhaji Tajudeen Sanusi are competent persons to represent the interest of the family (i.e. children of the deceased) and that they are proper persons who ought to be substituted herein for the deceased defendant as respondent to continue with the case for themselves and on behalf of the family of Y.O. Sanusi (deceased)”.

The respondents filed no counter-affidavit but through their counsel opposed the application for substitution. The learned counsel raised 3 grounds of objection. They are:

“(1) That there was no evidence that consent of the parties sought to be substituted had been obtained.

(2) That the court has no jurisdiction to make any party respondent in an appeal/the order prayed for (sic)

(3) As the application may be regarded as one to ‘carry on proceedings’ it must be shown to be necessary. That a claim for trespass and an injunction is a personal action which dies with the person.”