Madam Wosilatu Ologundudu Pearse V. Alhaji Kosenatu Oloyede & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Lead Ruling)

By motion on notice dated on the 4th of March 2013, the Applicant seek the following Order of Court viz:

(i) AN ORDER praying the Honourable Court to substitute the Appellant, Madam Wosilatu Ologundudu Pearse (deceased) with Mr. Kayode Alade Folawiyo (the Applicant) her son for an on behalf of the estate of the deceased.

(ii) AN ORDER granting leave to amend the processes filed to relist the appeal earlier filed in this matter pursuant to the leave being granted for substitution.

The grounds upon which the application is predicated are that

1. The Appellant in this appeal is dead
2. The Appeal is not a personal action but it involves inheritance under Yoruba native law and custom
3. The cause of action (appeal) is survives Madam Wosilatu Ologundudu Pearse, the Appellant.
4. Mr. Kayode Alade Folawiyo being the only male child of the deceased (Appellant) wants to be substituted for the Appellant because the cause of action survives the Appellant, his mother.

The application is supported by a eighteen paragraphs (18) affidavit deposed to by one Olawande Idris, Legal Practitioner in the chambers of Messrs Lanre Ogunlesi SAN & co. Annexed to the affidavit in support of the motion is Exhibit “WO1” – Medical Certificate of cause of death of the deceased, Alhaja Wosilatu Ologundudu Pearse.

The parties filed their respective written addresses in support of and against the application.

On the 8th of May 2013, the Applicant (Mr. Kayode Alade Folawiyo) filed his written address in support of his application.

On the 13th of May 2013, the Respondent filed his written address in opposition to the application.

A reply of the Applicant to the written address is dated 16th May 2013. The fulcrum of the Applicant’s application is to substitute late Madam Wosilatu Ologundudu Pearse with Mr. Kayode Alade Folawiyo; to relist the motion on notice to extend time within which to seek leave to appeal filed on the 8th of March 2012, to enable him prosecute the appeal on behalf of the estate of the deceased.

But the Respondent, who filed no counter-affidavit, in his written address in opposition to the motion dated 1/3/2013 and filed on 4/3/2013, had argued as stated in his issue for determination which is whether

(a) An application to substitute a party is competent under Order 15 of the Court of Appeal Rules 2011, in the absence of on existing appeal which has been duly entered in this Court, and whether the motion dated 1/3/2013 and filed on the 4th of March 2013 is not abuse of Court process and liable to be dismissed.

The Respondents has argued that there is no appeal before this court, as none has been filed. There is therefore no Appellant. For the Applicant to refer to the deceased as Appellant, is therefore a misconception. No appeal has been entered, he argues. There is only a motion for extension of time to appeal and for leave to appeal.

From records, there was a motion filed on the 8th of March 2012, for an order to relist the motion on notice dated 16th September 2008 for extention of time within which to seek leave, and filed Notice of Appeal against the Judgment delivered by the Hon. Justice (Mrs.) T. Ojikutu-Oshode of the Lagos state High Court, Ikeja Judicial Division which was struck out by this Honourable court on the 22nd of February 2010.