I. O. Eyesan V. Y.O. Sanusi (1984) LLJR-SC

I. O. Eyesan V. Y.O. Sanusi (1984)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

The appellant herein was the plaintiff in suit No.LD/208/75 he instituted against Y.O. Sanusi in the High Court of Lagos State, Lagos Judicial Division on the 25th day of February, 1975. In that suit, he claimed:

“(1) N100.00 general damages for trespass committed by the defendant, his servants and or agents on the plaintiff’s land situate at Toye Kuti Street, Igbobi, Lagos State, edged green on the plan No.A1/1975 filed along with the statement of claim covered by certificate of purchase dated the 7th day of February, 1972 and registered as No. 58 at page 58 in volume 1389 of the Register of Deeds in the office at Lagos,

(2) An order of perpetual injunction restraining the defendant, his servants and/or agents from further trespass to the said land”.

Pleadings were filed and duly served and the issues joined came up for hearing before Ademola Johnson, J. At the conclusion of the hearing, he delivered a well considered judgment wherein he dismissed the suit on the 20th day of March, 1981. Being dissatisfied with the decision, the plaintiff filed his notice and grounds of appeal to the Federal Court of Appeal on the 24th day of March, 1981. On the 1st day of April, 1982, before the appeal was heard and disposed of in the Federal Court of Appeal, the defendant/respondent died intestate. This Court was informed at the hearing of this appeal that letters of administration have since the death not been applied for or taken out to administer the estate of the deceased. In view of the death of the defendant, the plaintiff/appellant applied by motion to the Federal Court of Appeal for an order “that the respondents (1) Taurid Sanusi and (2) Alhaji Tajudeen Sanusi (for themselves and on behalf of the family of Y.O. Sanusi deceased) be substituted in place of the defendant/respondent in the appeal”.

Paragraphs 3, 6 7 and 8 of the affidavit filed in support of the motion contain the most pertinent and relevant facts relied on by the appellant who was the deponent. They read:

“(3) That the defendant, Yesufu Olorunsola Sanusi died in Lagos on the 1st April, 1982 after the appeal herein was entered in this Honourable Court;

(6) That I have made enquiries as to the defendant’s children and discovered that one Mr. Taurid Sanusi of the Federal Government Press, Lagos is the eldest child of the deceased and now Head of his family;

(7) That one Alhaji Tajudeen Sanusi gave evidence as a son of the defendant;

(8) That I verily believe that Taurid Sanusi and Alhaji Tajudeen Sanusi are competent persons to represent the interest of the family (i.e. children of the deceased) and that they are proper persons who ought to be substituted herein for the deceased defendant as respondent to continue with the case for themselves and on behalf of the family of Y.O. Sanusi (deceased)”.

The respondents filed no counter-affidavit but through their counsel opposed the application for substitution. The learned counsel raised 3 grounds of objection. They are:

“(1) That there was no evidence that consent of the parties sought to be substituted had been obtained.

(2) That the court has no jurisdiction to make any party respondent in an appeal/the order prayed for (sic)

(3) As the application may be regarded as one to ‘carry on proceedings’ it must be shown to be necessary. That a claim for trespass and an injunction is a personal action which dies with the person.”

In a reserved ruling, the Federal Court of Appeal (Kazeem, Nnaemeka-Agu and Mohammed, JJ.CA) refused the application and dismissed it.

Dealing with the main reason for the refusal, Kazeem, J.C.A in his ruling (concurred in by Nnaemeka-Agu and Mohammed JJ.CA) observed and held as follows:

”There is no evidence that the persons sought to be substituted in these proceedings had trespassed on the land in dispute and there is nothing either to show that they had consented to be joined. As a matter of fact, they are opposing this application on those grounds.

‘It seems to me, therefore, that since the respondent’s estate did not benefit from the right which the judgment found in his favour, the action for damages for trespass and an injunction were merely personal actions which would have terminated on his death.

The maxim applicable is ‘actio personalis morituri cum persona’ meaning a personal action dies with the person. This maxim does not apply to personal actions founded on contract nor to cases where the deceased wrongfully appropriated property (Philips v. Homfray 1883) 24 Ch D. 439. All other causes of action subsisting against or vested in a person survive against or, as the case 20 may be, for the benefit of, his estate. In this case, if the right found in favour of the respondent had enured to the benefit of the estate, the persons sought to substituted being persons who would inherit the estate of the respondent on his death intestate would have been the proper persons to be substituted. But I have found supra that the right does not enure to the benefit of the respondent’s estate.” (Italics mine)

Aggrieved by this decision, the appellant appealed to this Court to reverse the decision on the following grounds of appeal:

(1) The learned Justices of Appeal misdirected themselves in law by failing to observe that by the judgment of the High Court and their Lordships’ ruling herein, as between the plaintiff and the defendant, the land in dispute has been awarded to the defendant without the plaintiff being granted the right to challenge the said judgment by substituting the defendant’s successors in title upon his decease.

(2) The learned Justices of the Court of Appeal misdirected themselves in law and on the facts

(i) in holding that what the learned trial judge found was a local customary right when such was neither pleaded nor found by the trial judge; and

(ii) having so held in further holding that such a customary right cannot “enure to the benefit of the respondent’s estate as the dominant owner when by the verdict of the learned trial judge the issue of title was determined in favour of the defendant who was accordingly, as against the plaintiff “awarded” the land and whose successors in interest by the verdict would successfully maintain a plea of res judicata. (Italics mine)

(3) The Federal Court of Appeal misdirected itself in law in holding as follows:

“It seems to me therefore that since the respondent’s estate did not benefit from the right which the judgment found in his favour the action for damages for trespass and an injunction were merely personal actions which would have terminated on his death. The maxim applicable to this case is ‘actio personalis moritur cum persona’ meaning a personal action dies with the person.

This maxim does not apply to personal actions founded on contract nor to cases where the deceased had wrongfully appropriated property [Phillips v. Homfray) (1883) 24 Ch. D. 439. All other causes of action subsisting against or vested in a person survive against or as the case may be, for the benefit of, his estate. In this case, if the right found in favour of the respondent had enured to the benefit of the estate, the persons sought to be substituted being persons who would inherit the estate of the respondent on his death intestate, would have been the proper persons to be substituted.

But I have found supra that the right does not enure to the benefit of the respondent’s estate. In the circumstances, I am of the opinion that the order sought cannot be granted to substitute two of the respondent’s children to continue the appeal.

Particulars of Misdirection

(a) The learned Justices of Appeal failed to observe that the principle enshrined in the maxim, actio personalis moritur cum persona a maxim of common law, is no longer good law and has been abandoned in Lagos State in favour of section 15 of the Ad ministration of Estates Law, Cap 2 Laws of Lagos State which stipulates that on the death of any person all causes of action subsisting against him or vested in him shall survive against or as the case may be, for the benefit of his estate (save the four exceptions therein mentioned which does (sic) not apply in this case)

(b) Phillips v. Homfray relied on by the learned Justices in any event, ceased to be good law in Lagos State in 1973 and in England in 1934 with the enactment of the Law Preform (Miscellaneous Provisions) Act 1934.

(c) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(d) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

The issues arising in this appeal have not been set out in the appellant’s brief as is required by Order 9, rule 3(1) of the Supreme Court Rules 1977 but they have been well formulated and set out in the respondents’ brief. I am of the view that the questions for determination on the wider con are fourfold. They are:

(i) Whether, having regard to the endorsement of claim and pleadings, the action instituted in the High Court that went on appeal to the Court of Appeal is a personal action;

(ii) Whether if it is a personal action, all proceedings including appeal proceedings on it are terminated by the death of the deceased and whether the right of action dies with the deceased;

(iii) whether, if it is not an action that dies with the deceased, such an action which stood dismissed against the deceased at the time of his death, is an action which an unwilling person or unwilling persons however related to the deceased shall be made to “carry on” in an appeal and whether the appellant’s application (now on appeal) is not being made “merely for the purpose of enabling appeal to be made from final decree …..” as opposed in Fussell v Dowding (1884) 27 Ch D 237 at pages 239-242;

(iv) whether Order 3, rule 23 of the Court of Appeal Rules permits the Court of Appeal to substitute unwilling persons for a deceased tortfeasor who had an action against him dismissed in his lifetime as in this case; and whether Order 15, rule 15 sub- rule 3 of English Supreme Court Practice 1982 is not of assistance in deciding that “there is no jurisdiction to appoint a person including the official solicitor who is unwilling to act……. or to appoint a person to represent the estate of a deceased person who was the only person liable.”

But, having regard to the ruling and decision of the Court of Appeal in the application for substitution, only the first two questions arise. Although the 3rd and 4th questions were raised before the Court of Appeal, they were not considered by the Federal Court of Appeal. Learned counsel for the respondent has invited this court to consider the questions. Before dealing with the questions for determination in this appeal, I need to set out briefly the submissions of counsel.

Mr. H. A Lardner, SAN., learned counsel for the appellant, submitted that the action instituted against the deceased did not die with the person of the deceased. He contended that the common law maxim “actio personalis moritur cum person” no longer has any application in Lagos State. This, he observed, is because section of the Administration of Estates Law Cap. 2 Laws of Lagos State 1973 has made specific express provision for the survival of such action. He further contended that were the principle of law enshrined in the maxim applicable in the State, the action leading to the instant appeal is excepted from its operation.

Mr. Olakunrin, learned counsel for the respondent, in reply submitted that the state of the law is as contained and spelt out in the reasoning and conclusions of the Court of Appeal in their ruling. Learned counsel then urged on this Court the Supreme Court to consider, if necessary, the other grounds of objection raised in the course of the hearing before the Court of Appeal and repeated before us. I have earlier on referred to those grounds of objection and would observe that there is no cross-appeal before this Court. Unless there is an appeal or cross-appeal or notice of intention to vary or and affirm the judgment of the Court of Appeal on the other grounds clearly set out, this court will not accept such invitation. Parties have the constitutional right to bring to the notice of the Supreme Court their complaints but only in accordance with the laws and rules governing the practice and procedure in the Supreme Court.

Turning to the 1st two questions for determination, I ask myself what this maxim “actio personalis moritur cum persona” means. The Law Revision Committee in England in its interim Report of 7th March, 1934 (Cmd 4540) referred to it as “of obscure origin and uncertain meaning”. The 1st reported reference to the maxim appears to be in 1479. But Bowen, LJ. in Phillips v. Homfray (1883) 24 Ch D 439 at 456 said the rule is as old as English Law. In English law the maxim literally means that “A personal right of action dies with the person”. The maxim properly relates only to the extinction of liability but it has sometimes been misused in connection with the rule that death does not give rise to liability in tort. It has been bereft of much of its importance in England by the Law Reform (Miscellaneous Provisions) Act 1934 S.1 and in Lagos State by section 15 of the Administration of Estate Law Cap. 2 Laws of Lagos State 1973.

At common law, it is to actions in form ex delicto that the maxim was peculiarly applicable and in a few cases still applies:

This maxim says Lord Abinger “is not applied in the old authorities to causes of actions in contracts but to those in tort, which are founded on malfeasance or misfeasance to the person, or property of another; which latter are annexed to the person, and die with the person, except where the remedy is given to (or by) the personal representatives by the statute law” See Raymond v. Fitch, 2 Cr M & R 588 at 597.

The general rule of common law was, that if an injury were done either to the person or to the property of another for which unliquidated damages only could be recovered in satisfaction, the action died with the person to whom, or by whom the wrong was done [Wheatley v. Lane 1 Wms. Saund (ed. 1845) 216a; n.(1)].

This general rule of the common law received considerable alteration by statute as early as 1330, when the Act 4 Edw. 3,C7 was passed. This Act enabled executors to sue and recover damages for trespass to the goods and chattels of testators in like manner as their testators if they were in life. The Act was construed as extending to all torts, except those relating to freeholds, and those where the injury done is of a personal nature. The common law provided no remedy after a person’s death for an injury done in his lifetime to his real estate, and accordingly if his personal representatives sued in respect of such injury, the maxim as a rule defeated the action unless it was maintained under the Civil Procedure Act 1833 S.2.

Under this Act, an action could be maintained by executors or administrators of a deceased person for any injury to his real estate committed in his lifetime for which he might have maintained an action if alive provided first, that the injury was committed within six months before his death, and secondly, that their action was brought within one year after his death.

Both those enactments were repealed and re-enacted by the Administration of Estates Act 1925 section 25(1), (2) the corresponding provisions of which were rendered superflous by the general provision mentioned in section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, and were repealed by the Act.

As regards torts to property, therefore, the rule of the common law, which equity also recognised, was that remedies for wrongful acts “can only be pursued against the estate of a deceased person when property or the proceeds or value of property belonging to another have been appropriated by the deceased person and added to his own estate” [per Bowen, L. J. in Finlay v. Chimey 1888 20 Q.B.D. 494 at 504. Thus the common law itself supplies remedy by action against the personal representatives of a wrongdoer for tort committed by him to property. The locus classicus is the leading case of Phillips v. Homfray 1880 24 Ch. D 43. In that case, the wrongful act was a trespass to land by the secretuse of certain underground ways without the landowners’ knowledge and the action was brought by the landowner against the trespasser to recover compensation for the trespass.

While the action was pending, the trespasser died and thereupon the landowner sought to continue the action against the executors of the trespasser on the ground that, as no way-leave had been paid for the use of the underground ways, the estate of the deceased wrongdoer had derived profit from the wrong. On the facts of the case, the Court of Appeal, however, held that the maxim, actio personalis moritur cum persona applied. The judgment of Bowen, L. J. is illuminating as to the general effect of the maxim. At page 455, the learned Lord Justice observed as follows:

“The only cases in which, apart from questions of breach of contract, express or implied, a remedy for a wrongful act can be pursued against the estate of a deceased person who has done the act appears to us to be those in which property, or the proceeds or value of property, belonging to another have been appropriated by the deceased person and added to his own estate or moneys.

In such cases, whatever the original form of action, it is in substance brought to recover property or its proceeds or value and by amendment could be made such in form as well as in substance. In such cases, the action, though arising out of a wrongful act does not die with the person. The property or the proceeds or value which, in the lifetime of the wrongdoer could have been recovered from him, can be traced after his death to his assets, and recaptured by the rightful owner there. But it is not every wrongful act by which a wrongdoer benefits that falls under this head if the benefit does not consist in the acquisition of property or its proceeds or value. When there is nothing among the assets of the deceased that in law or equity belongs to the plaintiff and the damages which have been done to him are unliquidated and uncertain the executors of the wrongdoer cannot be sued merely because it was worth the wrongdoer’s while to commit the act which is complained of and an indirect benefit may have been reaped thereby.”

This maxim is not of Nigerian origin. The origin cannot be traced to any Nigerian or English statute. It is of English common law origin.

In Phillips v. Homfray (supra) Bowen, L. J. dealing with the history of and origin of the maxim actio personalis moritur cum persona said at p.456:

‘The judgment however of Mr. Justice Pearson is based upon certain dicta of Lord Mansfield in Hambly v. Trott 1 Coup 374, which are in form ambiguous and it is necessary accordingly to examine these dicta by reference to the history of the maxim actio personalis moritur cum persona. Whatever its wisdom or policy, the rule with its limitation is as old as the English law. By the civil law, penal actions arising from wrong were not generally availabe against the heir, and certain actions ex contractu fell under the same disability. By the English law, an executor represents the debts and property, but not the person of the testator. It seems to have been thought that there would be an injustice in making the executor stand in the place of the dead man when the causes of action were purely personal. (see Year Book 19H.6, 66B) The taking up of executorship’ says Bacon in his Abridgment, executors 7th Ed. vol III p. 537 ‘is an engagement to answer all debts of the deceased, and all undertakings that create a debt, as far as there are assets, but doth not embark the executor in the personal trusts of the deceased nor is he obliged to answer for his several injuries for none can tell how they might have been discharged or answered by the testator himself.

As regards all actions essentially based on tort the principle was inflexibly applied.”

In Finlay v. Chiney (1888) 20 O.B.D. 494, Bowen, LJ. at 502 said (dealing with the same question):

“But a more serious question has been raised as to the liability of an executor 35 in respect of an alleged breach of promise of marriage by the testator whose estate he represents.

The liability of an executor in respect of acts and default of his testator has been in the English law a matter of slow growth. The maxim ‘actio personalis moritur cum person’ is one of some antiquity, but its origin is obscure and post- classical. Unless indeed some very restricted sense is affixed to the word ‘personalis’, it is by no means true at the present day that a personal action always dies with the person.”

And at page 504 of the report, the learned Lord Justice observed:

“Modern jurisprudence has, however, since the reign of Oueen Elizabeth adopted a rough but convenient interpretation of the maxim, which is set forth in the passage above cited from Williams’ Saunders 1 Wms. Saund 240. On the one side of the line of demarcation lie actions of tort. Remedies for wrongful acts, according to the present law can only be pursued against the estate of a deceased person when property or the proceeds or value of property belonging to another have been appropriated by the deceased person and added to his own estate or moneys. Phillips v. Homfray 1880 24 Ch. D 439, at p. 454.

On the other side of the line lie actions founded on any contract express or implied or any other duty to be performed.” (Italics mine)

That is the position at common law. Turning to the statutory alteration, I have to consider section of the Administration of Estates Law Cap. 2 Laws of Lagos 5 State 1973 which is the relevant applicable statutory provision.

For the present statement of the law, that section reads:

“(1) Subject to the provisions of this section, on the death of any person after the commencement of this law all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate.

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.

(2) XXXXXXXXXXXXX

(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless either

(a) proceedings against him in respect of that cause of action were pending at the date of his death; or

(b) the cause of action arose not earlier than three years before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out representation.” (Italics mine)

These provisions are in pari materia with the provisions of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, an English Act.

In the light of the state of the law, both under the common law and under the statute law on survival of causes of action, can it be said that the claim before the court in the present action by the appellant died with the defendant/respondent, Y.O. Sanusi. My short answer is that the cause of action survives against his estate. The land in dispute can now be traced to the assets of the deceased. This can easily be ascertained from the facts pleaded in the statement of claim and I find paragraphs 2, 3, 15, 16, 19, 20 and 21 of the amended statement of claim pertinent and germane. I also find paragraphs 2, 3, 11 and 12 of the amended statement of defence relevant. These paragraphs read as follows:

Amended statement of claim:

“2. The land in dispute is all that piece or parcel of land situate at 2, Toye Kuti Street, Igbobi, shown and edged in green on plan AL9/1975 attached herewith.

3. The said land in dispute forms portion of the land edged in red on the said plan the area edged red being the land conveyed to the plaintiff under and by virtue of a court certificate of purchase dated the 7th February, 1972 and registered as No. 58 at page 58 in Volume 1389 of the Register of Deeds, Lagos.

13.The plaintiff has since he bought the land on Falade’s conveyance been in full and effective possession thereof and since his certificate of purchase in full and effective possession of the land covered by it;

15.The defendant claims to be an adjoining landowner and to own the compound to north of the plaintiff’s land and he (the defendant) has common boundary with the plaintiff’s land edged in red on the attached plan.

16. The defendant is not the owner and has no document conferring ownership on him in respect of any part of the area edged red on the said plan.

19.The defendant insists on gaining access to this storey house not only by the gate leading into his compound and thereafter by the front entrance door to the storey house but also by the area edged green (which is not defendant’s land) and thereafter by a side entrance door to the said storey house.

20. The plaintiff avers that the defendant has no right title or interest in the area edged red (and therefore in the area edged green).
21. The defendant without leave and licence of plaintiff has by himself and his servants and/or agents, almost daily since 1972 gone on and continues up to the date hereof to go on the area edged green which he insists on using for ingress to and egress from the storey house standing on defendant’s compound.”

Amended statement of defence:

“2. The defendant denies paragraph 2 of the plaintiff’s amended statement of claim (hereinafter referred to as the statement of claim). The piece or parcel of land in dispute is part of the street known as Toye Kuti Street, and which is common to both plaintiff and defendant.

3. With further reference to the foregoing paragraph the defendant avers that the portion of land in dispute is composed of part of the set back left by the defendant from his own land facing Toye Kuti Street and that portion of the public road known as Toye Kuti Street which touches the wall of Igbobi College.

11.The defendant denies paragraph 20 of the plaintiff’s amended statement of claim and avers that he (defendant) has an interest in that part of Toye Kuti Street adjoining his house up to the wall that fenced in Igbobi College compound.

The defendant avers that the plaintiff has no legal or moral right to claim exclusive right to use the road.

XXXXXXXXXXXXXXXXX

12. The defendant admits paragraphs 21 and 22 of the plaintiff’s amended statement of claim and avers that he (defendant) his servants, agents and visitors have been using the same with the knowledge and consent of the plaintiff’s predecessor in title (Falade) or indeed anyone else since November, 1954 when he bought his land which adjoins the street declared to him (defendant) as a street for public use.” (Italics mine)

It is therefore abundantly clear from the pleadings, that title to the land in dispute is very much in question. The defendant clearly by paragraph 3 of the amended statement of defence claimed part of the land in dispute as his own and the remaining part as public road. The plaintiff/appellant by his paragraphs 2, 3 and 13 of the amended statement of claim also claims it.

Since the defendant is now dead, that portion of the land in dispute which he claimed definitely becomes part of the assets of his estate. The maxim actio personalis moritur cum persona in this case, therefore, can have no application whatever to nullify the action-appeal proceedings and the learned Justices of the Court of Appeal were in error when they held that the maxim was applicable and could be invoked to defeat the action and therefore created a bar to substitution of the respondents to carry on the proceedings. The action survives against the estate of Y.O. Sanusi (deceased)

Section 15 of the Administration of Estates Law also ensures and protects the survival of the proceedings on appeal. Generally speaking, a judgment delivered by the trial court in a case after the conclusion of the evidence and final addresses brings an action to an end. But if an appeal is filed and pending against the judgment, the action is not at an end. Although the successful party has a judgment in his favour, the court of appeal will and has power to rehear the matter. This is further emphasised by section 16 of the Court of Appeal Act 1976. The provision of section 16 of the Court of Appeal Act expressly provides that the Court of Appeal shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may rehear the case in whole or in part. That section also disposes of the issue raised by the respondent as to the competence or jurisdiction of the Court of Appeal to entertain the application. It is true that the issue raised was as to the competence of the Court of Appeal to entertain the application under Order 3, rule 23 of the Court of Appeal Rules 1981. The issue of competence cannot be separated from the issue 15 of jurisdiction. The Court of Appeal Act 1976 defines the powers of the Court of Appeal and sets out the procedure as far as was necessary. The Court of Appeal Rules 1981 are complementary to the Court of Appeal Act.

The next question for consideration is whether the Court of Appeal can appoint an unwilling person to carry on the proceeding on behalf of the estate. Learned counsel for the respondents contended that the court has no power to appoint the respondents whose consent was not obtained to carry on the proceedings on behalf of the estate of Y.O. Sanusi (deceased). It is conceded by appellants’ counsel, Mr. Lardner SAN. that the consent of the respondent to the appointment was not obtained. There is no counter-affidavit before the court challenging the facts deposed to in the affidavit filed in support of the application. The fact that Taurid Sanusi, the first respondent is the eldest surviving son of the deceased and head of the family of the deceased has not been controverted. It is a well settled statement of customary law that when a Yoruba person dies, title to his properties devolves on all his surviving children in equal shares and the eldest child assumes the position of head of the family and manager of the estate of the deceased for and on behalf of all the children. See Kareem v. Ogunde (1972) 1 All N.L.R. (Part 1) 73.

The issue of consent to be appointed to carry on proceedings touching the claim by a 3rd person to the property claimed by the deceased to be his and now 35 property of all his children by devolution seems to me to warrant very little consideration particularly when there is no evidence of renunciation of right of inheritance.

If the respondents had of their own volition applied to be substituted as successors in interest of the deceased as was done in the case of Okankan Inua v. Eke Effiang Nta (1961) 1 All N.L.R. Part 4 Page 506, the necessity for the appellant filing his application would not have arisen. It is the duty of every appellant to prosecute his appeal and the diligence of learned counsel for the appellant in the matter could never have been better exhibited than by the industry he has put in this matter.

Learned counsel for the respondents contended that the right or opportunity to action” which the section (i.e. section 15 of Administration of Estates Law) saves for the benefit of the estate of a deceased person. He further contended that even if the prosecution of an appeal is such a right that the right will enure only in favour or against the personal representatives of the deceased and that in such a case, the personal representative in the strict legal sense of the expression will take the initiative to prosecute or defend such a cause of action.

A right of appeal to the Court of Appeal is a constitutional right exercisable by a party in a civil case. See section 222(a) and (b) of the 1979 Constitution. The right exercisable by a person who has complaints touching his civil rights and obligations against another person, government and section 236(1) of the 1979 Constitution. Once the exercise of this right of action has commenced, the exercise is not completed until the action is finally and completely determined by the court of 1st instance or the appeal court.

If the cause of action is one that survives the death of either party, appointment of a person or persons to carry on the proceeding in place of the deceased party is a necessary function of the court either of 1st instance or of appeal on application by the personal representative of the deceased or the beneficiaries of the estate or on application by represented parties or on application by the other party so that the proceedings can be brought to a close. Tesi Opebiyi v. Shittu Oshoboja & Anor. (1976) 10 S.C. 195.

A beneficiary who inherits properties also inherits the litigation touching the property either pending at the death of the deceased owner or in prospect. It is even in his own interest to have the litigation brought to an end so that the quantum of interest inherited by him may be known and the full enjoyment of them commenced.

The very expression used in the section, i.e. “all causes of action subsisting against or vested in him shall survive against, or as the case may be for the benefit of his estate” implies that the beneficiaries of the estate against which an action survives inherit the litigation. The respondents cannot therefore be heard to contend that the appellant herein did not obtain the consent of the respondents who are beneficiaries of the estate to be joined to carry on the defence on behalf of their deceased father’s estate.

Learned counsel for the respondents contended that as it appears that Order 15, rule 7(16) and Order 15, rule 15 of the Rules of the Supreme Court in England as contained in the 1982 White Book are the applicable rules, the affidavit in support has failed to show the necessity for the order to substitute the respondents to “carry on proceedings” as required in the case of Fussell v. Dowding (1884) 27 Ch. D 237 and that the appellant has therefore failed to satisfy the court that the court has jurisdiction to substitute innocent and non-consenting parties, however related, for the deceased Y.O. Sanusi against whom no judgment subsisted at the time of his death. Suffice it to say that the English Rules are inapplicable in this matter.

Learned counsel for the respondents appeared to have over-looked the fact that Y.O. Sanusi was a respondent in the appeal proceedings at the time of his death and that the 1st respondent herein is his eldest son and now head of the family and the 2nd respondent another son who, with the other children, would inherit the property in dispute if the appeal fails. The respondents were not just innocent and non-consenting parties.

The facts of the case of Fussell v. Dowding (1884) 27 Ch. D 237 are not in support of the contention of respondents’ counsel. In that case, an application was made on 12th March. 1884 by Elizabeth Kent, the sale next of kin and an annuitant under the will of the plaintiff, Maria Mary Fussell, to the Court of Appeal for leave to appeal from the decree dated 12th July, 1872 made by the High Court in favour of Maria Mary Fussell (who died in 1881) declaring her entitled to the whole property comprised in a marriage settlement dated 30th April, 1858. This was after a lapse of about 12 years from the date of judgment and the time for appeal had long expired. Chitty, J. at pages 240 and 242 observed:

“At the time when the decree was made, the time for appealing was five years and Mrs. Fussell has lived and died in the belief which she was justified in entertaining, that the decree was final and that the property which has thus been adjudged to belong to her, did belong to her and that it could not be taken away from her.

…………………………………………………..

………………………………………………….

Nothing whatever remains to be done under the decree.

Now the applicant avowedly asks for an order to revive simply for the purpose of appealing; when I say ‘revive’ I mean to carry on the proceedings.

It seems to me that the court has a discretion in making the order, and the applicant is bound to show that it is either necessary or desirable for the purpose of working out the decree. In this case, the decree admittedly has been worked out and a transfer of the funds has been made years ago. The only object, therefore, is that there may be an appeal from the decree. It appears to me having regard to the observations which fell from the late Master of the Rolls in Curtis v. Sheffield 21 Ch. D. 1, that in cases of this kind where the only object of a party asking for an order is to appeal, and where there are no special circumstances in the case, where, for instance, there is no suggestion of collusion or fraud, or the like, and where there is no irregularity, as there was in the case of Walmsley v. Foxhall 1 D.J.& S 451 where the decree had erroneously dealt with future rights the right rule to be observed is this, that such an order should not be made after the expiration of the time which is limited now for an appeal, namely one year.

It is not necessary to go so far as that in the case which I am dealing with, because a period of something like 12 years has elapsed since that decree was made. I think the application ought not to succeed that it certainly is not ‘necessary’ nor in my opinion, ‘desirable’ that such an order should be made.

It is for the benefit of all suitors that they should be able to act on a judgment, which on the face of it is final after the time has elapsed for bringing of any appeal and I think they are entitled so to act, and treat the judgment as final unless there are special circumstances which I am quite clear there are not in this case.”

In the instant appeal, the appellant filed his appeal to the Court of Appeal within time. His appeal had been entered in Court of Appeal and was pending when the defendant/respondent died.

The facts of this instant appeal, unlike the facts of the application in Fussell v. Dowding (supra), justify proclaiming the necessity and the making of the order sought by the appellant. The appeal succeeds and is hereby allowed.

The decision of the Federal Court of Appeal dated 16th September, 1982 in the application dated 21st day of June, 1982 for an order substituting “Taurid Sanusi and Alhaji Tajudeen Sanusi for themselves and on behalf of the family of Y.O. Sanusi (Deceased)” as respondents in place of the defendant/respondent now deceased is hereby set aside and in its place an order granting the application as made is hereby ordered to be substituted.

It is further ordered that hearing of the appeal pending before the Court of Appeal is to proceed with Taurid Sanusi and Alhaji Tajudeen Sanusi (for themselves and on behalf of the family of Y. O. Sanusi deceased) as respondents.

The appellant shall be paid costs in this appeal assessed at N300.00 by the respondents.

IRIKEFE, J.S.C.: I agree with my learned brother, Obaseki, J.S.C. whose judgment in draft I had been opportuned to read that the cause of action leading to the appeal in this matter survived the death of the deceased and that his two children, namely: Taurid Sanusi and Alhaji Tajudeen Sanusi are fit and proper persons to be substituted as respondents for the purpose of prosecuting this appeal. I would also allow the appeal with costs as indicated in the judgment of Obaseki, J.S.C.

ESO, J.S.C.: I have had the opportunity of reading in draft the judgment which has just been delivered. I am in agreement with the reasoning and conclusion reached by learned brother Obaseki J.S.C. and I think it will serve no useful purpose for me to repeat what he has said especially as I am in agreement. I have no doubt that the statement of claim and the defence raise issue of title. The action was not a personal action and cannot be seen as such. The action must, therefore, survive against deceased’s estate. I will also allow the appeal and abide by the orders contained in the judgment of my brother Obaseki J.S.C.

SC.107/1982