Salami Adeoti Omokewu & Ors. V. Abraham Olabanji & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C. 

In the High Court of Kwara State in Suit No. KWS/OM/92/84, the plaintiffs who are the respondents in the application now before us sued one Salami Adeoti Omokewu and Suleman Durotoye Abegunde II (both of whom are now dead) and two others including Sanni Salawu Odofin Ogbu (or Ogbe), the present applicant, claiming, as per paragraph 23 of their statement of claim:

(i) A declaration that the 1st plaintiff is the bonafide appointed AROMU OF OKORE,”

(ii) A declaration that the 1st defendant’s appointment as AROMU OF OKORE by the 4th defendant is null and void;

(iii) A perpetual injunction restraining the 1st defendant from parading himself as AROMU of OKORE;

(iv) An injunction restraining the 2nd, 3rd and 4th defendants from recognising the 1st defendant as AROMU OF OKORE.

The action proceeded to trial at the conclusion of which the learned trial Judge on February 17, 1988 found in favour of the plaintiffs and granted them the reliefs sought.

The defendants by Notice of Appeal dated February 24, 1988 appealed to the Court of Appeal. During the pendency of the appeal on November 3, 1988, the 1st defendant Salami Adeoti Omokewu died. The fact of his death was, however, not brought to the attention of the Court of Appeal which Court on February 1, 1989 allowed the defendants’ appeal to it and dismissed the plaintiffs’ claims. The plaintiffs, being dissatisfied with the judgment of the Court of Appeal appealed to this Court. This Court allowed the appeal on July 17, 1992, set aside the judgment of the Court of Appeal and restored the judgment of the trial High Court.

Now 3 years after the judgment of this Court the present applicant who was all along 2nd defendant in the original proceedings and presumably the only survivor of the three defendants that appealed to the Court of Appeal, brought this application seeking –

“1. AN ORDER declaring the judgment of the Supreme Court in SC. 158/89 delivered on July 1992 as null and void and striking out the said appeal.

2. AN ORDER declaring the judgment of the Court of Appeal in CA/K/90/88 delivered on February 1, 1989 as null and void and striking out the said appeal.
3. SUCH FURTHER OR OTHER ORDER/S as this Honourable Court may deem fit to make in the circumstances.”

and set out the following grounds upon which the application is predicated:

“1. That at the time the said Court of Appeal judgment CA/K/90/88 was delivered on February 1, 1989 and the Supreme Court judgment SC 158/89 was delivered on July 17, 1992, the 1st respondent who was the necessary party to the said appeals had died.

2. That the death of the 1st respondent to the said appeals, which occurred on November 3,1988 was never brought to the Notice or attention of the Court of Appeal or of the Supreme Court as required by law.
3. That any judgment delivered when a necessary party to the action or appeal had died is null and void.”

The application is supported by an affidavit sworn to by the applicant. The penultimate paragraphs of the affidavit which form the synopsis of applicant’s submissions before us, read:

“6. That the 1st respondent at the Supreme Court, Salami Adeoti Omokewu died on November 3, 1988 before the Court of Appeal delivered its judgment. Attached herewith and marked Exhibit ‘A2′ is a copy of the Medical Certificate of cause of death showing the date the 1st respondent died.