Daniel Ifejika V. Veronica Abiana Oputa (2001)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is an appeal against a ruling of the High Court of Anambra State of Nigeria holden at Onitsha, Coram Keazor, J. in Suit No. 0/522/95, delivered on 18th November, 1999, wherein he granted the application of Veronica Abiana Oputa and substituted her as the plaintiff in place of her late mother, Agnes Mensah, now deceased, who was the plaintiff in the said suit with no order as to costs.

In the suit of the original plaintiff (Agnes Mensah) at the court below the claim against Daniel Ifejika, then the defendant (but now the appellant) was as follows:-

“19. Wherefore plaintiff claims:-

(i) Declaration that the defendant is not entitled to maintain the borehole in his premises where same has been sited as the vibration and noise emanating therefrom constituted nuisance to the plaintiff’s occupation and use of her premises.

(ii) An injunction to restrain the defendant by himself, his servants or agents or otherwise howsoever from causing nuisance by noise or vibration to come into and about the plaintiff’s said premises during normal working hours and/or resting on weekdays and on weekends.

(iii) N50,000.00 (fifty thousand naira) damages for nuisance.”

Pleadings were duly ordered and filed in the case, and issues joined, and as a matter of fact hearing commenced, and proceeded until plaintiff closed her case, after which she died at the ripe age of 90 years. Her daughter by name Veronica Abiana Oputa, (i.e. the present respondent) therefore brought an application on notice, for her to substitute her late mother as the plaintiff in the action, so that the suit could continue to conclusion as required under Order 13 rules 1(1),2 and 5 of the High Court Rules of Anambra State, 1988. However, the said application was vigorously opposed by learned counsel for the defendant, (now appellant), who filed no counter-affidavit in his opposition but opposed only on law. Unfortunately, the argument of learned defence counsel was not summarised in the records. However, from the particulars given under his grounds of appeal at page 24 of the records, the arguments of learned counsel for defence may be summarised as follows:-

(i) The cause of action in the suit died with the plaintiff.

(ii) The cause of action in this suit being nuisance founded in tort cannot survive the victim of the wrong, but dies with her.

At the end of all the arguments the learned trial Judge, Keazor, J. came out with a 31/2 (three and a half) page considered ruling in which he overruled the objection of learned defence counsel and granted the application for substitution of the deceased plaintiff by her daughter the applicant.

The defendant being dissatisfied with that ruling has now appealed to this court on one ground of appeal from which one issue for determination was also formulated as follows:-

“Whether Veronica Abiana Oputa can in law be allowed to substitute the plaintiff on record who is deceased in the circumstances of this case.”

The defendant will hereinafter in this judgment be referred to as the “appellant.”