The applicant herein brought this application praying for:-
An order of the Honourable Court to add the
Applicants name - MRS. OLUSOLA AYINKE
ISAFIADE OKUNZUA as Appellant in this suit
in substitution of DR. G.O. OKUNZUA (now
deceased).
The application is supported by an 11 paragraphs affidavit
deposed to by Oyetuga Olugbenga Joseph , a legal practitioner in
the law firm of Emman I. Oboh & Associates, solicitors to the
applicant. Exhibited to the affidavit is a medical certificate of
cause of death in respect of Professor Gabriel Omotoye Okunzua,
also marked as exhibit A.
The resume of facts leading to this application is necessary as
a foundation for its consideration. The plaintiff now respondent
claimed against the defendant now appellant in the court below,
vacant possession of house No. 7B Iya Oloye Crescent, off Ikorodu
Road, Maryland Ikeja which was let out to the defendant at an
annual rent of N10,000. The defendant filed his statement of
defence and counterclaimed against the plaintiff the sum of
N127,595.95, made up of N100,000.00 damages for breach of
contract, N27,000.00 as overpayment of rent and N595.95 as
expenses on improvements of the said premises. At the conclusion
of trial, judgment was given in favour of the plaintiff which
culminated in filing this appeal. Briefs of argument in respect of
the appeal have been filed and exchanged. Unfortunately however
before the appeal could be heard the appellant died on 4th
September, 2006 hence this application by the applicant to be
substituted as a party to the proceedings in the place and stead of
her deceased husband.
In moving the application, learned counsel for the applicant
moved the court in terms of the prayers contained in the motion
and urged the court to grant same. The respondent objected to the
application on points of law, as there was no counter affidavit
filed. The respondent anchored his objection on survival of action,
to the effect that the cause of action does not survive the deceased
appellant. Learned counsel submitted that the right of action for a
yearly tenant under the law is personal, and does not survive the
deceased on his death. In support of this submission, learned
counsel relied on the following cases: Oyeyemi Vs Comm for
Local Government Kwara State (1992) 2 NWLR (Pt. 226) 661
at 664 and Whyte V Jack (1996) 2 NWLR (Pt. 431) 407 at 413.
In concluding, learned counsel urged the court to refuse the
application and dismiss the appeal as there is no appellant.
Replying on points of law, learned counsel for the applicant
submitted that tenancy agreement extends to the heirs and binds
the dependents of the deceased, hence it survives the deceased.
Learned counsel further relied on Order 15 Rule 2 of the Court of
Appeal Rules 2007 and the case of Eghologbin Oketie & Ors V
Ambrose Olughor & Ors (1995) 4 NWLR (Pt. 392) 655 at 667
and 673. In concluding, learned counsel urged the court to grant
the application.
The narrow compass within which this application oscillates,
is whether the cause of action subject matter of this appeal survives
the deceased appellant or not. This will in turn determine the
grant or otherwise of the application for substitution. By way of
prologue and preamble, an examination will now be made on the
effect of the death of a party on a pending action. Apart from the
rights of administrators, executors or the personal representatives
of the deceased person, a dead person ceases to have any legal
personality from the moment of death and as such can neither sue
or be sued either personally or in a representative capacity. An
action therefore based on the personal right of the deceased person
dies with the person. This is expressed in the latin maxim, Actio
personalis moritur cum persona (personal right of action dies
with the person). Where however, the cause of action survives the
death of a party such an action is not terminated by death. This
principle also applies to an appeal. The right of appeal may
survive a deceased party to a cause or matter but such right must
be exercised by a living person or persons. See Ngonadi V.
Jinadu (1987) 1 NWLR (Pt. 51) 533, Ezenwosu V. Ngonadi
(1988) 3 NWLR (Pt. 81) 163, Oketie V. Olughor (1995) 4
NWLR (Pt. 392) 655 at 667 and Oyeyemi V. Comm for Local
Government (supra).
It is necessary at this juncture to consider all the authorities
statutory and decided cases, cited for and against the application.
Order 15 of the Court of Appeal Rules 2007 provides thus:-
15(1). It shall be the duty of counsel
representing a party to an appeal to give
immediate notice of the death of that party,
to the registrar of the court below or to the
registrar of the Court (as the case may
require) and to all other parties affected
by the appeal as soon as he becomes aware
of the fact.
15(2). Where it is necessary to add or substitute
a new party for the deceased, an application
shall, subject to the provisions of Order 4 Rule
10, be made in that behalf to the court below
or to the Court either by any existing party
to the appeal or by any person who wishes to
be added or substituted.
15(3). Where an appeal has been set down for
hearing and the Court is or becomes aware that
a necessary party to the appeal is dead the appeal
shall be struck off the hearing list.
In the case of Oyeyemi V. Comm. For Local Government
(1992) 2 NWLR (Pt. 226) 661 at 675 the Supreme Court, per
Nnameka Agu, JSC said:-
I should mention at this stage that the 5th
defendant died before this appeal came up
for hearing. An attempt in a motion filed by
his brother, one Alhaji Mustapha Atoyebi to
be substituted for the 5th defendant as a
respondent in this appeal was refused by the
court on the ground that claims numbered 5
and 6 in the suit were personal action against
the 5th defendant. The applicant had no
interest in the subject matter of the suit. The
rule for substitution in such cases is
governed by the application of the maxim:
action personalis moritur cum persona, a
personal right of action dies with the person.
It postulates that an action based on the personal
rights of a deceased person dies with the person.
Examples of such actions are those not being
ex contractu for breach, debt, covenant or other
similar duty to be performed which can be
maintained or continued by or against the
deceased persons personal representatives
On the principle, we held the view that the
right if any of the 5th defendant if any to the
chieftaincy stool dies with him
..
In Whyte V Jack (1996) 2 NWLR (Pt. 431) 407 at 422, this
court following the Supreme Courts decision is Oyeyemi V.
Comm for Local Government (supra), refused an application to
substitute the 6th Appellant, now deceased and held per Onalaja
JCA thus:
It is common ground that claims b, d and
e, were declaratory orders an chieftaincy
matters against the 6th defendant/6th
appellant now reported dead
Claims b, d and e are personal claims
against the 6th Appellant now deceased
did not survive his death and died with
him being personal action it is not binding
on its privies, agents and emissaries.
In Oketie V. Olughor (1995) 4 NWLR (Pt. 392) 655, the
Supreme Court in an appeal relating to an action for declaration of
title to a piece of land, granted an application to substitute the
deceased appellant on the ground that the action survived the
deceased appellants and it was filed in a representative capacity.
In Arowolo V. Akapo (2006) 18 NWLR (Pt. 1010) 94, the
Supreme Court in an appeal relating to a chieftaincy matter granted
an application to substitute the appellant on the ground that the
judgment on appeal affected the rights of the appellants family and
interest of justice demands that a member of the appellants family
be put forward. The apex court per Onoghen JSC at pages 107-
108 stated thus:
It is very clear from the above
that however hard one may try to make
it appear that a claim for chieftaincy stool
is a personal action the reality of the situation
will always reveal its true nature, a family
dispute either inter se or between families
which affects the rights of members of the
family or families concerned extending to
those yet unborn. From the facts of the case,
I am of the firm view that though Jimoh Arowolo
appears to have been sued in his personal
capacity, the main issue before the court of
trial as revealed by the pleadings is whether
or not the Olaforikanre family being the ruling
house that presented the original appellant for
the stool of Oba of Itele forms part of the
four ruling houses earlier carved out of
the Adogun Atele family so as to be
eligible to hold the title of Oba of Itele.
It is therefore clear, and I hereby hold
that this is a proper case for substitution
so as to protect the interest of the family
or ruling house that presented the original
appellant for the Obaship of Itele
particularly as the interest of that family
in the dispute survives the death of the
original appellant.
I am of the view that this is a convenient point to examine the
decisions that have been referred to in this ruling. At this stage
also, it is pertinent to mention that Order 15 Rule 2 of the Court of
Appeal Rules 2007, gives this court the power to add or substitute
parties to an appeal. As for the cases recited, though none related
to the issue of landlord and tenant, yet some guiding principles can
be elicited to determine whether the right of action survived the
appellant in the present application. In Oyeyemi V. Comm for
Local Government (supra) and Whyte V. Jack (supra), though
the claims related to chieftaincy but they were personal in nature
in relation to the deceased parties sought to be substituted. Hence
the applications were not granted. In Arowolo V. Akapo (supra)
though a chieftaincy dispute and the appellant sued in his personal
capacity, yet the pleadings revealed a dispute as to whether the
ruling house, to which the appellant belongs is one of the four
ruling houses that could produce an Oba. The cause of action was
held to have survived the deceased and the application granted to
protect the interest of the family or ruling house. The position in
Oketie V. Olughor (supra) is much simpler as the action was for
title to a piece of land and was filed on behalf of a community in a
representative capacity, hence the application for substitution
granted. From the foregoing it is clear that the actions filed in a
representative capacity do not pose much problem. However
where the action is filed in a personal capacity, pleadings play a
pivotal role in determining whether the right of action survives the
deceased.
The most important consideration in an application of this
nature, is whether the right of action survives the deceased. If the
cause of action is such that it terminates on the death of either
party, for example a claim in defamation, then that will be the end
of the action. But if the cause of action is such that it survives the
deceased, then the rules of court will come into play and
substitution will be granted. In the application at hand, the
deceased appellant was a tenant in the rented premises. The
appellant as defendant filed a counter claim to the tune of
N127,595.95. Tenancy relationship is contractual in nature and
the parties, their successors in title and assigns are bound by the
terms and conditions in the tenancy agreement. A close study of
the claim before the lower court and the affidavit in support of the
application which has not been controverted, will show that though
the appellant was sued in his personal capacity, the applicant has
shown sufficient interest of the family to protect in this action.
Consequently I hold that the cause of action survives the deceased
and granting the application will serve the interest of justice better.
The application is hereby granted as prayed and an order is
hereby made adding the applicants name MRS. OLUSOLA
AYINKE ISAFIADE OKUNZUA as appellant in this suit in
substitution of Dr. G. O. Okunzua (now deceased). There will be
no order as to costs.