In Re: Osibakoro D.otuedon (1995)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

By an application dated and filed on the 20th day of October, 1994, the applicants, Osibakoro D. Otuedon and Peter O. Egueye, applied to this court for the following orders:-

“1. Substituting the applicants for the named plaintiffs/appellants to prosecute this appeal for themselves and on behalf of the Gbolokoso people.

2. for a fresh hearing of the application dated 14th day of May, 1993.
3. dispensing with:-

(i) The filing of a fresh Notice of Appeal herein;

(ii) The compilation of a fresh Record of Appeal;

(iii) The filing of a fresh appellants’ brief.

4. treating the Notice of Appeal dated the 18th February, 1994 and filed in the Court of Appeal, Benin City as a properly filed Notice of Appeal for the purpose of this Appeal.
5. treating the appellants’ brief already filed herein as properly filed and served with effect from the date of the order to be made herein.

And for such further order or other order or orders as this Honourable Court may deem fit to make in the circumstances.”

This application is supported by a 15 paragraph affidavit sworn to by the second applicant who described himself as the Secretary to the Gbolokposo Community. A further affidavit in support of the application sworn to on the 28th October, 1994,exhibited a resolution by the Gbolokposo community authorizing the applicants to replace the named plaintiffs on record and to prosecute their appeal on behalf of the community. The named plaintiffs/appellants had, for themselves and on behalf of the Gbolokoso people in the Okpe Local Government Area of Delta State instituted an action against the defendants/respondent” for title to the “piece or parcel of land at Gbolokposo/Gbomro village” within jurisdiction, payment of all compensation in respect of the said land and injunction.

Learned counsel for the applicant”, A. Adesokan Esq. in moving this application relied on all the facts deposed to in the affidavits in support of the motion. He indicated that the three appellant on record were all dead. He explained that the 2nd and 3rd plaintiffs/appellants died between 1975 and 1983 but that the 1st plaintiff only died on the 3rd day of August, 1993. He stressed that the named plaintiffs had been prosecuting this action for themselves and as representatives of the Gbolokposo community and that the res in this action remains not withstanding the death of the named plaintiffs on record. He pointed out that before the death of the last surviving plaintiffs the appellants had filed an application dated the 14th May, 1993 in this court for:-

“(i) An order extending the time within which to apply to this Honourable Court for leave to appeal against the decision of the court of Appeal Benin Division dated 20th November, 1989 on questions of fact and of mixed law and fact.

(ii) An order granting leave to appeal against the decision of the Court of Appeal, Benin Division dated 28th November, 1989 on questions of fact and of mixed law and fact.

(iii) AN order extending the time within which to appeal against the decision of the Court of Appeal, Benin Division on questions of fact and of mixed law and fact.”

This application was granted on the 31st January, 1994, pursuant to which the appellants filed a Notice or Appeal in the Court of Appeal, Benin City on the 18th February, 1994. The appellants filed their brief of argument on the 9th June, 1994 and the same was duly served on the respondents. He contended that much expense and trouble would be saved if an order is made which would make it unnecessary to file, fresh Notice of appeal and appellants brief. Learned counsel indicated that it was necessary to reargue the appellants’ application dated the 14th May, 1993 in view of the death of the last of the plaintiffs/appellants’ representatives on the 3rd August, 1993, that is to say, before the said application was argued and granted by this court on the 31st January, 1994.

Asked whether the applicant can now apply for all the prayers they seek in view of the invalidity of the proceedings and orders or this court made on the 31st January, 1993 in the matter of the application dated the 14th May, 1993 as all the applicants had died before the said orders were purportedly made, learned counsel indicated, quite rightly in my view, that he was no more pressing for the 2nd – 5th prayers in his motion paper. He drew attention to the distinction between an action inpersonam as against an action in a representative capacity and argued that this is a proper case for the substitution of the deceased plaintiffs with the applicants. In this regard he relied on the decision or this court in Clement Ezenwosu v. Peter Ngonadi (1988) 3 NWLR (Pt.81) 163. He therefore urged the court to grant the first prayer or his application to enable the applicant prosecute their appeal for themselves and on behalf of the Gbolokposo community. He emphasised that after the death of the 2nd and 3rd plaintiffs but before the death of the 1st plaintiff on the 3rd August, 1993, the appellants had on the 14th February, 1990 filed their Notice of Appeal against the decision of the Court of Appeal, Benin City delivered on the 28th day of November, 1989, well within time as prescribed by law. He said he was relying heavily on this Notice of Appeal which, he stressed, was filed on the 14th February, 1990. He submitted that the appeal in this case was validly pending in this court before the death of the last surviving plaintiff on the said 3rd August, 1993 and he urged the court to grant the order for substitution as prayed.