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;