Clement Ezenwosu V Peter Ngonadi (1988)

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B. CRAIG, J.S.C.

The Principal questions for decision on this appeal are:

(a) Whether a dead litigant could lodge an appeal against the decision of the High Court; and

(b) If not, what steps should be taken by any person interested in the appeal to revive it and continue with the appeal.

The claims in the Court of first instance were for declaration of title to a piece of land at Umuchu in the Aguata division of the former East Central State of Nigeria and an injunction to restrain the Defendant from entering or remaining on the said parcel of land.

Those claims came before Obi-Okoye J. (as he then was) and on the 4th of March, 1977, he gave judgment in favour of the Plaintiff. Apparently the Defendant was dissatisfied with that decision for, on the 7th April, 1977, his counsel filed in Court, a Notice of Appeal containing 11 grounds of appeal. But as it later turned out, the Defendant was dead as at that date.

He was alleged to have died on 4th April, 1977. Consequent upon the Notice filed, the parties were invited to settle records of appeal and on the 29th April, 1977, when they appeared before the Senior Registrar, the Defendant/ Appellant was recorded as having died. Nonetheless as both parties were represented by Counsel, the Registrar proceeded to impose conditions of appeal.

One of these conditions was that the Appellant should enter into a Bond in the sum of N200.00 with one surety in like sum to prosecute the appeal. In view of the fact that the Appellant had died one Peter Ngonadi was shown to have executed the said Bond. He did so on the 25th of May, 1977, and thereafter nothing further was done about the appeal for six years.

On the 13th June, 1983, the Plaintiff’s Counsel filed in the Court of Appeal Notice of a preliminary objection to strike out the appeal on the ground that it was incompetent as it was brought in the name of a deceased person. Counsel contended that the Appellant had died on the 4th April, 1977 – some three days before the appeal was filed – and two persons swore to this fact.

At the hearing of the application, Mr. Adogu, former Counsel for the deceased/appellant informed the Court orally that the appellant was alive when he filed the Notice of Appeal but that he had no further instructions on the matter. The court, thereafter, made an order striking out the appeal “for want of prosecution.”

After this event, indeed on 9th August, 1983, one Peter Ngonadi brought a Motion

“(i) To relist the appeal which was struck out for want of prosecution on 28th June, 1983; and

(ii) To substitute the name of Peter Ngonadi for Aaron Ngonadi who died on 12th April, 1977.”

In the accompanying affidavit, he swore to the fact that his father, Aaron died on 12th May, 1977. The two dates are obviously conflicting, but in a Counter-affidavit, the Plaintiff/Respondent maintained that the deceased Appellant died on 4th April, 1977. When the application came up for hearing the applicant’s Counsel withdrew the Motion and it was struck out.