Mrs. Titilayo Shodeinde & Anor. V. Olajide Lawal (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

This is an appeal from the Ruling of Coker J. who refused to set aside the judgment of Ishola J. delivered on 18/7/2007 in Suit No.ID/540/93. The application to set aside the judgment is dated 22/10/2007 (see pages 211 – 212 of the records).

According to the appellant, the claimant (now respondent in the appeal) sued Mr. Gabriel Omotoye Okunzua for recovery of his professional fees. The said Gabriel Omotoye Okunzua died intestate on the 4/9/2006 before judgment was delivered. On 7/12/2006 the claimant filed a motion on notice dated 6/12/2006 praying:-

“for an order to join Mrs. Titilayo Shodeinde and Mr. O. B. Ogundelu in this action to substitute for Gabriel O. Okunzua – the former defendant herein (now deceased).”

With the death of Gabriel Omotoye Okunzua, his counsel Mr. A. O. Abraham of A. O. Abegunde & Co. was noted by the claimant’s counsel to have withdrawn active legal representation in the suit. On 11/12/2005 the said A. O. Abraham of counsel informed the court that Gabriel Omotoye Okunzua was dead and he had no further instructions to represent him and did not know who is going to be substituted for him. However, on 27/2/2007 the claimant’s counsel moved his motion for joinder and substitution dated 6/12/2005 aforesaid and the same was granted without opposition from A. O. Abraham of counsel. In the ruling delivered by the learned trial judge, the appellants were “substituted for the joinder defendant Mr. G. O. Okunzua who is now deceased. Necessary amendments to be made accordingly. Matter adjourned to 13/5/2007 for adoption.”

On 21/5/2007, counsel to the claimant and A. O. Abraham of counsel for the deceased defendant adopted their written addresses. And on 18/7/2007 the learned trial judge delivered judgment in favour of the claimant and made an award of N171,250.00 against the appellants. By notice of motion dated 22/10/2007, the appellants sought to set aside the judgment dated 18/7/2007 and strike out the names of the appellants as parties to the suit. The court heard and dismissed the motion. The appellants are dissatisfied with the ruling and appealed against it in an undated Notice of Appeal containing a sole ground of appeal and sought for the following reliefs: –

i. An order setting aside the decision of the lower court

ii. An order setting aside the joinder of the 2nd and 3rd defendants/appellants as representatives of the 1st defendant/appellant (deceased).

iii. An order setting aside the judgment of Honourable Justice S. O. Ishola delivered in this suit on the 18th July, 2007 (See pages 316 – 318 of the records).

An application dated 27/9/2010 seeking to strike out the 2nd appellant’s name from the appeal was granted because he was reported dead. The appellant formulated the following issue for determination:

“Whether the judgment dated 18/7/2007 was a nullity, which ought to be set aside even by the lower court, for the non observance of the mandatory provisions of Order 73 Rules 76(5) 78 and 30 of the High Court of Lagos State (Civil Procedure) Rules, 2004, which entitles the appellants to be served with the originating court processes and be heard in their own defence”

The respondent raised the following two issues for determination:

1. Whether the court which heard the motion to set aside the judgment of Ishola J. was correct when she held that the applicable rules of court as applied in the lower court of trial is Order 13 Rule 15 of the High Court of Lagos (Civil procedure) Rules 2004 where a sale (sic) defendant dies during the course of proceedings without legal representatives?
2. Whether the judge’s finding that from the affidavit evidence before the court, the two defendants who were substituted for the sole deceased defendant who died during the proceedings in the High Court before Ishola J. were properly substituted after having had notice of the motion on notice before and after the substitution, should not be upheld?

The respondent neither cross – appealed nor filed a respondent’s notice. He therefore cannot raise any issue outside of the notice of appeal filed by the appellant nor formulate more issues than the grounds of appeal can accommodate. In the consideration of this appeal, l shall confine myself to the issue raised by the appellant.

It is necessary to point out that there was no appeal against the order of substitution which the court made on 27/2/2007. Consequently the second relief contained in the notice of appeal seeking for an order setting aside the joinder of the 2nd and 3rd defendants/appellants as representatives of the 1st defendant/appellant (deceased) cannot be considered. It is outside the scope of the appeal. Moreover a joinder is not possible where a party to a suit is dead. If the action survives the deceased the only proper order of joinder is that of his estate and any identified personal or legal representative will then be substituted for the deceased person. In the affidavit in support of the motion for substitution, the two appellants were identified as the personal representatives of the deceased.