Alh. Audu Turaki & Ors V. Alh. Ibrahim Modibbo (Deceased) & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the leading Ruling Judgment)

By a motion on notice dated and filed on 14th March 2011 the 1st and 2nd Appellants applicants seek the following orders:

a. An order substituting Alhaji Sallau Abdulrahman as the respondent in the place of Alhaji Ibrahim Modibbo (deceased) in Appeal No. CA/J/218/07 and all other processes before this court.

b. An order striking out the name of 3rd appellant, now deceased as appellant in this appeal.

And for such further or other orders as the court may deem fit to make in the circumstances of this case.

The grounds for the application are:

i. That the respondent and 3rd applicants are dead and the appeal survives them.

ii. That this appeal involves the interpretation of the provisions of the constitution of Hausawan Makurdi.

iii. That the appeal also involves the determination of which version of Hausawan Constitution is valid.

The application is supported by a 6-paragraph affidavit deposed to by one Blessing Onyenwere, secretary in the law firm of Chief S.O. Agbo & Co., solicitors to the appellants/applicants. Attached thereto is Exhibit A (notification of death). In opposition to the application one Martha Onyeneke, Litigation Secretary in the firm of Amuwa Olatunde & Co., solicitors to the deceased respondent and the party sought to be substituted deposed to a 7-paragraph affidavit dated 30/3/2011.

When the application came up for hearing on 4/4/2011, learned counsel for the respondent, Amuwa Olatunde Esq. opposed the grant of prayer (a) but had no objection to prayer (b) Consequently Chief S.O. Agbo, learned counsel for the applicants urged the court to grant prayer (b) With regard to prayer (a) he relied on the affidavit in support of the application and Exhibit A attached thereto. He submitted that the appeal involves the interpretation of the constitution of Hausawan Makurdi and which of the versions tendered before the trial court is valid. He submitted that the subject matter of the appeal does not die with the occupant of the position of Hausawan Makurdi. He submitted that by Exhibit A, the person sought to be substituted claims to be the person elected as the new Hausawan Makurdi. He submitted that it is his duty to work with the valid version of the constitution. He noted that the counter affidavit deposed to on behalf of the party sought to be substituted does not deny these facts. He urged the court to deem this as an admission and to grant the application.

In opposing prayer (a), Mr. Amuwa Olatunde of counsel relied on all the paragraphs of the counter affidavit. He submitted that with the death of Alhaji Ibrahim Modibbo, the Sarkin Hausawan of Makurdi the appeal is dead. He referred to paragraphs 4, 5 and 6 of the counter affidavit. He argued that the matter before the lower court was not brought in a representative capacity and therefore the appeal does not survive the deceased. He urged the court to refuse the prayer. In resolving this issue it is necessary to consider the position of the law regarding the death of a party to pending proceedings.

In the case of: In re Otuedon (1995) 4 NWLR (392) 655 @ 667 E-F, the Supreme Court per Iguh, JSC held thus:

”… apart from the legal rights of administrators, executors or the personal representatives of a deceased person, a dead person ceased to have any legal personality from the moment of death and as such can neither sue nor be sued either personally or in a representative capacity. Where, however, the cause of action survives the death of a party, such action is not terminated by death. This principle also applies to an appeal. See Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 533 and Clement Ezenwosu v. Peter Ngonadi (1988) 3 NWLR (Pt. 81) 163.”