Clement Ezenwosu v Peter Ngonadi (SC 15 of 1986)  NGSC 43 (17 June 1988);
CLEMENT EZENWOSU (APPELLANT)
PETER NGONADI (RESPONDENT)
(1988) All N.L.R. 254
Division: Supreme Court Of Nigeria
Date of Judgment: June, 17 1988
Case Number: (SC. 15/1986)
Before: Eso, Kawu, Oputa, Wali, Craig; JJ S.C.
Clement Ezenwosu successfully claimed against Aaron Ngonadi for a declaration of title to a piece of land in the High Court of former East-Central State delivered on 4/3/77. On 4/4/77 Aaron Ngonadi died but on 7/4/77 a notice of appeal was filed in his name against the judgement.
Following a preliminary objection by the Plaintiff/Respondent that the appeal was incompetent because it was brought in the name of a dead person, that court ordered that the suit be struck out for want of prosecution.
Aaron's son, Peter Ngonadi later brought an application to the Court of Appeal for extension of time within which to appeal against the judgment, leave to appeal and leave to have his name substituted for the name of his father in the matter. The Court of Appeal granted all the reliefs sought in the motion.
Clement Ezenwosu appealed against the ruling of the Court of Appeal to the Supreme Court. The issues for determination by the Supreme Court are: whether a dead litigant could lodge an appeal against the decision of the High Court; and if not, what steps should be taken by any person interested in the appeal to revive it and continue with the appeal.
(1) A deceased litigant cannot lodge an appeal. Any person who desires to appeal as stated in section 32 of the Court of Appeal Act must be a living human being i.e. a juristic person.
(2) It is reasonable to suppose that necessary instructions about the appeal were given to counsel at some time before the deceased died. But those instructions ceased on the death of the supposed appellant. The situation is similar to that which exists between a banker and his customer. The Banker's authority to honour a customer's cheque comes to an end on the death of his client (section 75 Bills of Exchange Act 1958). The reason is that dead men do not talk, they do not issue cheques nor do they complain about judgement.
(3) As the Notice of Appeal filed on 7th April 1977 was lodged by a non existing person, it is null and void, it is incapable of placing the deceased's complaints about the High Court judgment before the Court of Appeal. it is as if no notice at all had been filed.
(4) When that piece of paper was brought before the court some six years later, it was rightly struck out, and the effect of that order was that there was no longer a pending appeal before the Court of Appeal. But the right to appeal did not become extinguished.
(5) The deceased's son (present Applicant) took a false step when he applied to the lower court to:
(a) realist the appeal which was struck out; and
(b) to be substituted for his father.
(6) The original notice of appeal was struck out because it was incompetent and an order restoring that same notice to the cause list would not cure the defect in it.
(7) An appeal to the Court of Appeal is commenced by a Notice of Appeal. If that document is filed by a dead person, the court cannot be asked to amend the Notice by substituting a living person for the dead litigant, thus creating a proper "Appellant" in the case for the first time.
(8) What the respondent ought to have done was first to apply for:
(i) leave to appeal under section 222 of the 1979 constitution as a person having an interest in the case;
(ii) extension of time within which to apply for leave to appeal.
(iii) Leave to appeal under the rules of court. He may of course add other prayers, as for instance:
(iv) extension of time within which to file Notice and ground of Appeal.
(9) Per Oputa J.S.C: "There is a world of different between striking out a purported appeal because the appeal is incompetent and striking out a competent appeal for want of prosecution. To strike out an appeal for want of prosecution presupposes that there was before the Court of Appeal a competent and pending appeal which could, because of the inaction of the appellant be struck out or even dismissed for want of prosecution. Care should be taken by the courts below to make orders that are appropriate to the application before them, orders warranted by the surrounding circumstances of the application."
(10) Per Oputa, J.S.C. "It is not a mere procedural defect that an appeal has been filed in the name of a dead person. It is a radical and fundamental error which goes even to the issue to jurisdiction."
G. R. I. Egonu, S.A.N. (with him P.C. Nwagbogu) for the Appellant.
C. O. Akpamgba, S.A.N. (with him A.O. Harris Eze) for the Respondent
Cases referred to:
(1) E.A. Lamai v. M.C.K. Onibih (1980) 5-7 S.C. 28 at 29.
(2) Fesi Opebiyi v. Shitta Oshoboja & Anor. (1976) 9 - 10 S.C. 195
(3) I. O. Eyesan v. Y.O. Sanusi (1984) 4 S.C. 115
(4) M.O. Amudipe v. O. Arijodi (1978) 9/10 S.C 27 at 33
(5) Madukolu & ors. v. Nkemdilim (1962) All N.L.R. 587 per Bairamian F.J.
(6) Nzom v. Jinadu (1987) 1 N.W.L.R. 533
(7) R. V. Governor-in-Council W. R. ex P. Laniyan Ojo (1962) All NLR 147
(8) Re Daniel Deceased v. Bamgbose (1930) 19 N.L.R. 73
(9) St. Mathew Daniel Deceased in re Mathew Olajide Bamgbose (1950) 19 N. L. R 73
(10) State v. Gwonto (1983) 1 S. C. N. L. R. 142 at 160.
(11) T. Bowaje v. M. Adediwura (1976) 6 S.C. 143.
(12) Tetlow v. Orela Ltd. (1920) 2 Ch. 24
Statutes referred to:
(1) Constitution of the Federal Republic of Nigeria 1979.
(2) Court of Appeal Act No. 43 of 1976
(3) Court of Appeal Rules 1981
Craig, J.S.C. The Principal questions for decision on this appeal are:
(a) Whether a dead litigant could lodge an appeal against the decision of the High Court; and
(b) If not, what steps should be taken by any person interested in the appeal to revive it and continue with the appeal.
The claims in the Court of first instance were for declaration of title to a piece of land at Umuchu in the Aguata division of the former East Central State of Nigeria and an injunction to restrain the Defendant from entering or remaining on the said parcel of land.
Those claims came before Obi-Okoye J. (as he then was) and on the 4th of March, 1977, he gave judgment in favour of the Plaintiff. Apparently the Defendant was dissatisfied with that decision for, on the 7th April, 1977, his counsel filed in Court, a Notice of Appeal containing 11 grounds of appeal. But as it later turned out, the Defendant was dead as at that date. He was alleged to have died on 4th April, 1977. Consequent upon the Notice filed, the parties were invited to settle records of appeal and on the 29th April, 1977, when they appeared before the Senior Registrar, the Defendant/Appellant was recorded as having died. Nonetheless as both parties were represented by Counsel, the Registrar proceeded to impose conditions of appeal.
One of these conditions was that the Appellant should enter into a Bond in the sum of
N200.00 with one surety in like sum to prosecute the appeal. In view of the fact that the Appellant had died one Peter Ngonadi was shown to have executed the said Bond. He did so on the 25th of May, 1977, and thereafter nothing further was done about the appeal for six years.
On the 13th June, 1983, the Plaintiff's Counsel filed in the Court of Appeal Notice of a preliminary objection to strike out the appeal on the ground that it was incompetent as it was brought in the name of a deceased person. Counsel contended that the Appellant had died on the 4th April, 1977-some three days before the appeal was filed-and two persons swore to this fact.
At the hearing of the application, Mr Adogu, former Counsel for the deceased/appellant informed the Court orally that the appellant was alive when he filed the Notice of Appeal but that he had no further instructions on the matter. The court, thereafter, made an order striking out the appeal "for want of prosecution."
After this event, indeed on 9th August, 1983, one Peter Ngonadi brought a Motion
"(i) To realist the appeal which was struck out for want of prosecution on 28th June, 1983; and
(ii) To substitute the name of Peter Ngonadi for Aaron Ngonadi who died on 12th April, 1977."
In the accompanying affidavit, he swore to the fact that his father, Aaron died on 12th May, 1977. The two dates are obviously conflicting, but in a Counter-affidavit, the Plaintiff/Respondent maintained that the deceased Appellant died on 4th April, 1977. When the application came up for hearing the applicant's Counsel withdrew the Motion and it was struck out.
On the 9th of March, 1984, the applicant (Peter Ngonadi) brought yet another Motion. This time, he prayed for: "(i) extension of time within which to file notice and grounds of appeal in the above appeal;
(ii) for leave to appeal; and
(iii) for leave to substitute Peter Ngonadi, the Defendant/Appellant who died about 27th April, 1977."
In paragraph 2 of the affidavit attached to the Motion, he deposed to the fact that his father died on 4th April, 1977. The Plaintiff/Respondent filed a Counter-affidavit in which he agreed that the deceased-appellant died on that date-4th April, 1977, but he vehemently opposed the Motion. This is not surprising as the High Court judgment which the applicant was asking for leave to appeal against was already SEVEN YEARS old.
After hearing Counsel in argument, the Court of Appeal, per Belgore, J.C.A. (as he then was) reviewed the submissions of Counsel and held that the delay in making the application was not the fault of the applicant but that of the former Counsel of the deceased. The Court also held that if the deceased in fact died on 4th April, 1977, the appeal filed on his behalf on 7th April, 1977, was voidable and another party could be substituted for the deceased. In those circumstances, the lower Court granted the prayers asked for and made the following orders:
"I shall allow this application as prayed:
1. for extension of time within which to appeal;
2. for leave to appeal;
3. to substitute the name Peter Ngonadi the applicant for Aaron Ngonadi, deceased who allegedly died on 27th April, 1977;
4. Time is hereby extended till 30th May, 1985."
The Plaintiff/Respondent was dissatisfied with that Ruling and he appealed to this Court on 4 original grounds of appeal. With the leave of the Court he added a 5th ground. The five grounds of appeal are as follows:
Grounds for Appeal:
(1) That the Court of Appeal erred in law in granting the applicant/respondent's application for him to be substituted for Aaron Ngonadi.
Particulars of Error:
(i) That the appeal No. FCA /E/161/80 was null and void ab-initio as it was filed in the name of a deceased person.
(ii) That the said Appeal No. FCA /E/161 was struck out on the 28th day of June, 1983, and there was therefore no appeal pending in respect of which any person could be substituted for any of the parties.
(2) That the Court of Appeal erred in law in granting the applicant/respondent extension of time within which to appeal against the judgment of the High Court, Awka, delivered in Suit No. AA/44/72 on the 4th day of March, 1977.
Particulars of Error
(i) That as the applicant/respondent contended in his application that Aaron Ngonadi died on 7th April, 1977, then the application for extension of time within which to appeal was misconceived.
(ii) That there was no material before the Court of Appeal on which it could grant the applicant/respondent extension of time within which to appeal.
(iii) That the applicant/respondent did not satisfy the statutory requirements on which extension of time within which to appeal could be granted.
(3) That the Court of Appeal erred in law in granting the applicant/respondent leave to appeal.
Particulars of Error
(i) That the applicant/respondent had tried to deceive the Court as to the date of the death of Aaron Ngonadi so as to make it appear that the purported appeal filed on 7th April, 1977 was valid.
(ii) That the applicant/respondent did not make any application for leave to appeal under section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979.
(4) That the Court of Appeal misdirected itself in law by holding that an appeal filed in the name of a deceased person was merely voidable.
Particulars of Misdirection
(i) That an appeal filed in the name of a deceased person is null and void ab initio
(5) That the Court of Appeal had no jurisdiction to grant to the applicant/respondent leave to appeal and extension of time within which to appeal as no application for extension of time within which to apply for leave to appeal was made and granted.
(i) The time within which to appeal to the Court of Appeal against the judgment of the High Court, Awka, in Suit No. AA/44/72 expired on the 4th day of June, 1977.
(ii) The sole defendant having died, appeal against the said judgment could, after 1st October, 1979, be brought only with the leave of the High Court or of the Court of Appeal.
(iii) no application for extension of time within which to apply for leave to appeal was made or granted.
In the Brief of argument, the appellant's Counsel has formulated three main questions for determination by this Court. I note that Mr Akpamgbo, S.A.N., of Counsel for the appellant and which I consider appropriate and adequate for the determination of this appeal are as follows:
1. (a) Was the appeal filed on 7th April, 1977, after the supposed Appellant had died on 4th April, 1977, void ab initio, voidable or valid?
(b) If the purported appeal was void ab initio, could the applicant/respondent be substituted for the deceased person in whose name the appeal was erroneously filed?
(c) And if the purported appeal had been struck out as having been brought in the name of a deceased person, could the applicant/respondent still be substituted for the deceased person?
2. (a) In the circumstances of this case under what statutory provision should the applicant/respondent have applied for leave to appeal?
(b) Did the applicant/respondent make a proper application for leave to appeal?
(c) As no application for extension of time within which to apply for leave to appeal was made or granted, had the Court of Appeal jurisdiction to grant the application for leave to appeal and for extension of time within which to appeal?
3. Did the applicant/respondent satisfy the statutory requirements for him to be granted extension of time within which to appeal?
In respect of these various matters, I must commend both Counsel for the comprehensive submission made to the Court. The briefs filed have also been of immense assistance.
It seems to me that the first question that should be dealt with is whether a deceased litigant can lodge an appeal to the Court of Appeal. The answer must obviously be in the negative.
There is no doubt about it that when judgment was delivered in this matter on 4th March, 1977, the proceedings in the High Court must be taken to have come to an end. At that time both parties were alive. The next stage is for any aggrieved party in the case to appeal to the Court of Appeal.
Now proceedings in that Court are commenced by a Notice of Appeal in the same way as a normal suite is commenced by a Writ or Summons. It is to be expected therefore that the Notice of Appeal should be filed by an aggrieved party who is referred to as the "Appellant." In section 32 of the Federal Court of Appeal Act No. 43 of 1976, an "Appellant" is defined as:
"any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal and includes a legal practitioner representing such a person in that behalf."
See also Order 1, rule 2 of the Court of Appeal Rules. It seems to me that the word "any person" in the above definition must be taken to mean a living human being-i.e. a juristic person.
Now in the instant case, the question is would a notice which was filed by a dead person be valid Notice of Appeal? I do not think so. It is reasonable to suppose that necessary instructions about the appeal were given to Counsel at sometime before the deceased died. But those instructions would cease on the death of the supposed appellant. The situation is similar to that which exists between a Banker and his customer. The Banker's authority to honour a customer's cheque comes to an end on the death of his client.-see section 75 Bills of Exchange Act 1958. The reason for that is not far-fetched; it is because dead men do not talk, they do not issue cheques not do they complain about judgments.
The position therefore is this that as the Notice of Appeal filed on 7th April, 1977, was lodged by a non-existing person it is null and void. It is incapable of placing the deceased's complaints about the High Court judgment before, the Court of Appeal. It is as if no notice at all had been filed.
In any case, when that piece of paper was brought before the Court some six years later, it was, in my view rightly struck out, and the effect of that order was that there was no longer a pending appeal before the Court of Appeal. But this is not to say that the right to appeal has become extinguished. The Respondent's Counsel has submitted that the cause of action survives the death of the deceased and I agree with him. The important thing, however, is that whoever wishes to succeed the deceased/defendant, must bring the proper application before the Court.
In this respect the deceased's son (present applicant) took a false step when he applied to the lower Court to
(a) relist the appeal which was struck out; and
(b) be substituted for his father.
In my view that application was defective in two respects. Firstly, it is quite clear that the original Notice of Appeal was struck out because it was incompetent; an order restoring that same notice to the cause list would not cure the defect in it. Secondly, as I have stated before, an appeal to the Court of Appeal is commenced by a Notice of Appeal. If that document is filed by a dead person, the Court cannot be asked to amend the Notice by substituting a living person for the dead litigant, thus creating a proper "Appellant" in the case for the first time. See Tetlow vs. Orela Ltd. (1920) 2 Ch. 24 and In re: the matter of Pedro St. Matthew Daniel: (Deceased) (1950) 19 N.L.R. 73. It is obvious that the application was misconceived and in my view it was properly struck out. Perhaps the applicant must be made to appreciate that as far as this case is concerned he is a "Stranger" in the matter and if he wishes to be let in on the case (especially after a lapse of seven years) he should take the proper steps.
This brings me to the second main issue in this appeal and that is: What steps should a person take who wishes to be substituted for a deceased defendant?
In the instant case, the deceased was dissatisfied with the judgment of the High Court and had before his death, expressed an intention to appeal, but unfortunately, he had not filed any proper papers in pursuance of that objective. Therefore an applicant wishing to be let in on the appeal would need to apply first to be made a party under section 222 of the Constitution of the Federal Republic of Nigeria 1979. The relevant portion of that section reads:
"222. Any right of appeal to the Court of Appeal from the decisions of a High Court conferred by this Constitution:-
(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the High Court of Appeal at the instance of any other person having an interest in the mater...
(b) shall be exercised in accordance with any Act of the National Assembly and Rules of Court for the time being in force regulating the powers practice and procedure of the Court of Appeal." In the instant case, the applicant ought to have brought an application asking for:
(a) leave to be made a party in the case;
(b) leave to appeal against the decision of the High Court.
Now by section 25(2)(a) of the Court of Appeal Act No. 43 of 1976, an Appellant or any person desirous of appealing shall give notice of his appeal within 3 months of the date of a final decision, and by several decision of this Court a person applying for leave to appeal must do so within the statutory period of 3 months. If he is out of time, he would need to apply for extension of time within which to apply for leave to appeal, otherwise, the leave sought will be refused. See: T. Bowaje v. M. Adediwura (1976) 6 S.C.143. N.O. Amudipe v. O. Arijodi (1978) 9/10 S.C. at 33. E.A. Lamai v. N.C.K. Onibih (1980) 5-7 S.C. 28 at 39. In the instant case, the Applicant/Respondent is hopelessly out of time in applying for leave to appeal. He is SEVEN YEARS late and what he ought to have done was first to apply for:
(i) leave to appeal under section 222 of the 1979 Constitution as a person having an interest in the case; and under the Rules of Court;
(ii) Extension of time within which to apply for leave to appeal;
(iii) leave to appeal; He may, of course, add other prayers, as for instance;
(iv) Extension of time within which to file Notice and grounds of appeal.
It is necessary to point out that the last three prayers are wholly dependent on the first prayer. The other prayers cannot succeed, unless the applicant is first made a party in the case. The Applicant/Respondent has in fact not asked for this first prayer and the lower Court was, in my view, wrong to have given the Respondent leave to appeal.
Before concluding this judgment, I must briefly comment on the wording of the 5th ground of appeal. The Appellant's Counsel has submitted that the lower Court had no jurisdiction to grant the order prayed for because the respondent did not include a prayer for extension of time within which to apply for leave to appeal. The submission about lack of jurisdiction seems to me somewhat misconceived.
A defect in jurisdiction or lack of it relates to the act of embarking on the case, and not to any errors committed in the course of the hearing nor to the correctness of the judgment. See R. v. Governor-in-Council W.R. ex p. Laniyan Ojo (1962) All N.L.R. 147.
Indeed, jurisdiction is so fundamental to every adjudication that absence of it renders the entire proceedings nullity, no matter how well conducted and decided. See Madukolu and Ors. v. Nkemdilim (1962) All N.L.R. 587 per Bairamian F.J. In the instant appeal, there is no question about the lack of jurisdiction in the lower Court. By various Acts and Rules of Court, (notably section 222 of the 1979 Federal Constitution) the Court of Appeal is empowered to take applications for leave to appeal.
The fact therefore, that it eventually came to a wrong decision in the matter does not mean that it had no jurisdiction to hear the application.
In my view, a simple error in law has been made to appear as lack of jurisdiction. For the various reasons already given, I hold that the lower Court had jurisdiction to hear the Respondent's application but it erred in law in granting the Motion.
Accordingly, this appeal succeeds and it is allowed. The order of the lower Court is set aside, and it is ordered that the Respondent's application shall be struck out.
There will be costs to the Appellant assessed at
Kayode Eso., J.S.C. I have had a preview of the judgement of my learned brother Craig, J.S.C. I agree.
The principal issue in this case is whether or not an appeal can be lodged on behalf of a deceased litigant. If the question is
"Could a deceased litigant appeal to the court of Appeal? The answer is unhesitatingly No. but as I have couched the question and have in regard to the fact that counsel usually file appeals on behalf of litigant, one needs some investigation into the law. I agree with my learned brother that whatever instructions are given to learned Counsel cease on the death of the client. No client can act for the dead. And for any party interested to step into the shoes of the litigant an order of court is of necessity by virtue of section 222 of the 1979 Constitution which has already been set out in the aforesaid judgment of my learned brother.
Such person, even though all the applications are made in one fell swoop, may then seek leave to appeal or even extension of time to seek leave where necessary.
I abide by all the orders contained in the judgment of my learned brother Craig J.S.C.
Kawu, J.S.C., I have had the opportunity of reading in draft the judgment just read by my learned brother, Craig J.S.C. I entirely agree with his conclusion that this appeal ought to be allowed. For the reasons so clearly and fully set down in the said judgment, I too would allow the appeal. I abide by all the orders made in the lead judgment of my learned brother, Craig, J.S.C.
Oputa, J.S.C. I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Craig, J.S.C. and I am in complete agreement with his reasoning and conclusion.
The facts of this case are not very much in dispute. Clement Ezenwosu "as Head of the Oleforo Family of Amihie Village, Umuchu" sued Aaron Ngonadi for Declaration of title to a piece of land known as land called Ala Oleforo" situated at Umuchu in the Aguata Division of Anambra State. There was also Claim for Injunction. The defendant, Aaron Ngonadi was sued personally and not in any representative capacity. It is important to emphasise this point at the earliest opportunity as it is bound to affect the central issue in this appeal. After due hearing on relevant evidence, Obi Okoye, J. (as he then was) entered judgment for the plaintiff. He granted the declaration sought and also made an order for injunction. This judgment was delivered on the 4th day of March, 1977. It was then open to the defendant, Aaron Ngonadi, to file his appeal (if dissatisfied) within the statutory period. However on the 4th day of April 1977 the said Aaron Ngonadi died. Under our law a dead person ceases to be a legal person or to have a legal personality and as such he can neither sue not be sue personally for he ceases to be a legal person: Nzom v. Jinadu (1987) 1 N.W.L.R. 533 refers.
Can a dead person (who cannot sue or be sued personally) appeal against a judgment obtained against him while he was alive? That is the bone of contention in this appeal. I shall look into that, later. However, on the 7th April, 1977 the very same Aaron Ngonadi who died on 4th April 1977 "brought" an appeal against the judgment of Obi Okoye, J. delivered on 4/3/77. I wonder how the dead Aaron Ngonadi achieved this rather impossible feat. But suffice it to say, that on the 7th April, 1977 three days after his death, Notice and Grounds of Appeal were filed by the "Defendant/Appellant"-Aaron Ngonadi see p.71d of the record of proceedings.
As would be expected there was a preliminary objection to the competence of the purported appeal filed by, or on behalf of the dead Defendant, Aaron Ngonadi.
The Notice of preliminary objection brought under Order. 3r. 15 (1) of the Court of Appeal Rules appears at p. 78 of the record. The objection of learned Counsel for plaintiff and Respondent to the purported appeal was:
"(i) That the above appeal is incompetent and it is not properly before the court in that
(ii) The purported appeal was brought in the name of a deceased person."
It is important here to mention that the above Notice of preliminary objection was supported by two affidavits, one sworn to by Clement Ezenwosu the plaintiff in the original action and the other by Eze-Onwujiobi Nwamma, the local Counsellor. In his own affidavit Clement Ezenwosu deposed inter alia as follows:-
"2. That judgment was delivered in my favour in the above-mentioned suit on the 4th day of March, 1977 for declaration of title and injunction.
3. That Aaron Ngonadi, the purported appellant in the above appeal, died in the night of the 4th day of April, 1977 at Umuchu.
4. That the said Aaron Ngonadi was buried ... on the 6th day of April, 1977.
5. That the Notice of Appeal in the above appeal was filed at the High Court Registry, Awka, on the 7th day of April 1977."
In his own affidavit, Eze-Onwujuobi Nwamma swore inter alia:-
"3. That I knew the late Aaron Ngonadi the defendant in the above case...
4. That Aaron Ngonadi died in the night of the 4th day of April, 1977 at Umuchu.
5. That on the 5th April, 1977 the plaintiff reported to me that members of the family of late Aaron Ngonadi were preparing to bury the late Aaron Ngonadi on the land which was the subject to the above case and that he will not allow it.
6. That I met the members of the family of the late Aaron Ngonadi and informed them of the report made to me by the plaintiff and I advised them not to bury late Aaron Ngonadi on the land which was subject of the above case.
7. That the late Aaron Ngonadi was buried on the 6th day of April, 1977 at Umuilo Village on the land of Ezenwaka Umeojiako."
There was no counter-affidavit sworn to by anyone refuting any of the allegations of fact in the two affidavits especially the fact that Aaron Ngonadi died in the night of 4th April 1977. Any Court would thus be justified in regarding the date of death of Aaron Ngonadi as 4th April 1977.
With the greatest respect, one should have expected the Court of Appeal to just strike out the purported appeal as incompetent. The Court of Appeal did strike out the appeal but for a very wrong reason. At p.83 of the record appears the order of the Court below:-
"It is ordered:
That appeal be and is hereby struck out for want of prosecution..." There is a world of difference between striking out a purported appeal because the appeal is incompetent and striking out a competent appeal for want of prosecution. To strike out an appeal for want of prosecution presupposes that there was before the Court of
Appeal a competent and pending appeal which could, because of the inaction of the Appellant, be struck out or even dismissed for want of prosecution. Care should be taken by the courts below to make orders that are appropriate to the application before them, orders warranted by the surrounding circumstances of the application.
Thus at p.84 of the record appear the following application following naturally from the erroneous reason given striking out the purported appeal:
"In The Federal Court of Appeal Enugu Judicial Division Holden At Enugu Suit No. AA/44/72
In re Application of Peter Ngonadi-Party to be substituted NOTICE OF MOTION
TAKE NOTICE that this Honourable Court will be moved on Friday the 8th day of November, 1983 at 9 O'clock in the forenoon or so thereafter as this Honourable Court will be heard praying the Court for an Order.
(i) to relist the above appeal struck out for want of prosecution on 28/6/83;
(ii) to substitute the name of Peter Ngonadi for Aaron Ngonadi-plaintiff/Appellant, Applicant who died on 12th April, 1977.
And for such Order or orders as the court may deem fit, Aaron Ngonadi was not the plaintiff in the original action. He was the Defendant. It was wrong to refer to him in the above applications as the "plaintiff/Appellant." The above application alleging that Aaron Ngonadi died on 12th April, 1977 posed a challenge to the plaintiff/Respondent's earlier application of 28th June 19083 where it was alleged that Aaron Ngonadi died on 4/3/77. However on 29/11/84 the above mention to relist was withdrawn by Mr C.O. Akpamgbo and was struck out (see p.90 of the record) without resolving the issue as to the exact day Aaron Ngonadi died.
On the 26/4/84 (p.91 of the record) there was another application, this time, by Peter Ngonadi, the son of late Aaron Ngonadi for:
"(i) Extension of time within which to file notice and grounds of appeal
(ii) Leave to appeal.
(iii) Leave to substitute the name of Peter Ngonadi, the applicant for Aaron Ngonadi, the Defendant/Appellant who died about 27/4/77."
Paragraph 3 of the affidavit in support of the motion averred:
"3. That I am the party sought to be substituted in place of my father Aaron Ngonadi who died on 4/4/77."
In his lead Ruling at p. 109 Belgore, J.C.A. (as he then was) observed:
"What is before the Court is the applicant's contention that Aaron Ngonadi died on 27/4/77, the respondent said it was on 4/4/77 that he died." This is not quite correct. Paragraph 3 of the Applicant's sworn affidavit in support of his motion averred that "I am the party sought to be substituted in place of my father Aaron Ngonadi who died on 4/4/77." There was therefore no dispute that Aaron Ngonadi died on 4/4/77. It then follows that the appeal filed on his behalf on 7/4/77 was incompetent. It was struck out on 28/6/83. After the striking out, there was nothing else pending before the Court of Appeal.
During his argument against the motion for extension of time, leave to appeal and leave to substitute Peter Ngonadi for his late father Aaron Ngonadi, Egonu, S.N.A. for the Respondent submitted at p.103 as follows:
"I will start with the question of substitution. There could be substitution if there has been valid proceedings before the court. Here the appeal was filed after the death of the supposed appellant. On 28/6/83 the purported appeal was struck out ... It is therefore submitted that there is nothing before the court to substitute. What could be done is for an interested party to appeal as of right and not by substitution. S.222(a) Constitution The applicant cannot be substituted. He can only apply to this Court to appeal under S.222(a) of the constitution Re Daniel Deceased v. Bamgbose (1930) 19 N.L.R. 73; Fesi Opebiyi v. Shitta Oshoboja & anor. (1976) 9-10 S.C. 195. If substitution cannot be granted application for extension of time is baseless ..."
In spite of the above solid and substantial opposition, the court below allowed the motion and granted the applicant's prayers for:
"1. Extension of time within which to appeal.
2. Leave to appeal.
3. Leave to substitute the name of Peter Ngonadi the applicant for Aaron Ngonadi, deceased.
4. Time is hereby extended till 30th May 1985."
The plaintiff Clement Ezenwosu has not appealed to this Court against the orders for substitution, extension of time and leave to appeal.
The Appellant formulated 7 related Questions For Determination. I will deal with the central, radical and relevant Issue No.1 for if a decision is reached on that issue, that will take care of the other issues.
"Was the appeal filed on the 7th day of April, 1977 after the supposed appellant had died on the 4th day of April, 1977 void ab initio, voidable or valid?"
A dead man having no legal personality and capacity cannot file a writ of summons. By the same token a dead man cannot appeal against a judgment given against him when he was alive. Many judgments of this Court had dealt with the effect of death of a party to an action on the proceedings. In I.O. Eyesan v. Y.O. Sanusi (1984) 4 S.C 115 the plaintiff Eyesan instituted an action-suit No. LD/208/75-against Y.O. Sanusi as Defendant. Both parties were alive when the action was instituted. Both parties fought the case to conclusion in the Lagos High Court which dismissed the suit of the plaintiff on 20th March 1981. While both parties were still alive the plaintiff appealed to the Court of Appeal on the 24th March, 1981. On the 1st April 1982 during the pendency of the plaintiff's competent appeal, the Defendant/Respondent died. There was then an application made to the Court of Appeal to substitute his two children, Taurid Sanusi and Alhaji Tajudeen Sanusi as Respondents for the purpose of prosecuting the pending appeal. This was refused by the Court, relying on the main maxim action personlis moritur cum persona. On appeal to the Supreme Court, it was held that the cause of action did not die with Sanusi. This Court allowed the appeal ands substituted the two sons of Sanusi for their dead father. The principle to be distilled from this case is that there must be a competent and pending appeal before one can talk of substitution. Mr Egonu S.A.N.. was right when he submitted in the Court below that there ought to be a pending appeal before there could be an application to substitute.
The instant case on appeal thus suffered from two radical defects:
1. The purported appeal was filed by a dead man.
2. That purported appeal was even struck out on 28/6/83. The application to substitute made on 26/4/84 was not made with reference to any pending appeal. In applications for substitutions what is being substituted is party to the pending appeal (or suit). In the absence of any such pending appeal and therefore of any such party, substitution becomes an exercise in futility for ex nihilo nihil fit.
The next case that has some bearing on the facts of the present appeal is the case of Nzom v. Jinadu supra. There, this Court held that a dead man ceases to have a legal personality form the date of the death and such can neither sue nor be used either personally or in a representative capacity. But where the case of action survives the death of a party, such action is not terminated by such death. I can confidently say the same thing of an appeal. What is terminated is the prosecution of the appeal by the dead Appellant or the prosecution of the appeal with his name still as Appellant. The right to appeal may survive, but such right has to be exercised by living persons. Such living person or person cannot be brought in by mere substitution. In the case of St. Matthew Daniel Deceased In re Matthew Olajide Bamgbose 19 N.L.R. 73 it was clearly held:
"That the petition having been made in he name of a dead person as petitioner, there was no existing suit before the court and therefore an amendment designed to create a suit for the first time by substituting a living person as petitioner was not possible"
I will say the same thing of an appeal. Where an appeal is incompetent because it was brought in the name of a dead person such as appeal cannot be vivified and given life for the first time by substituting a living person as appellant.
Some dicta of this Court in Tesi Opebiyi v. Shitta Oshoboja (1976) 9 & 10 S.C. 195 at p.200 supply ready answers to some of the problems raised in this case by the death of a purported appellant:
"This next question is this. What is the position in a case where, after judgment had been given in the court below, the defendants before the court had died? It seems to us that once all the defendants who defended the action for themselves and on behalf of the Koaki family are dead, the action, provided it is still maintainable, could not continue until other persons have been substituted as defendant or defendants to carry on the representative action. Because of this, the order granting the plaintiff's extension of time within which to appeal, when there was no respondent to the application, is in our mind, null and void ... Consequently there is no appeal pending before the Court in respect of which Taiye Oshoboja could be substituted for the defendants who had died ..."
In this case since the Defendant who was sued personally died before the purported appeal and since there ought to be a pending appeal before applications therein in including applications for substitution can be made, the first step for the Applicant in the motion now on appeal, is to seek for and obtain leave of Court under section 222(a) of the 1979 Constitution as amended to exercise the right of appeal, which his deceased father purported to exercise, when a Notice of Appeal was filed on his behalf on 7/4/77 inspite of the fact that he in fact died on 4/4/77. When he (the present Applicant-Peter Ngonadi) has satisfied the High Court or the Court of Appeal that he has an interest in the matter on appeal, then the court acting under the said section 222(a) of the 1979 Constitution will allow him to step into the shoes of his late father, Aaron Ngonadi, and then properly and constitutionally exercise the right to appeal against the judgment of the High Court in Suit No. AA/44/72 delivered on 4/3/77. It is after thus being let in, that Peter Ngonadi can then properly apply for extension of time within which to appeal and leave to appeal on questions of act or mixed law and fact (if applicable).
The court below observed at p. 109, lines 18 to 25:
"It is the duty of the Court always to do justice. Procedures are for guidance and keeping order in proceedings. Parties, once they are not vexatious in their application or frivolous or in any way take step amounting to deliberate abuse of Court process, are to be allowed to present their case or prosecute their appeals and should be no slaves to procedural technicalities which may defeat justice."
There is no doubt that Courts exist to do justice. But then it is not abstract justice but justice according to the law and Rules of procedure. It is also justice between the parties before it-proper parties that is. There is no obligation on any Court to do justice between a party and a non-party. There is also no duty on any Court to do justice between the living and the dead. It is true that justice can only be done by examining the substance of the matter and by paying but scant reliance on technicalities: State v. Gwonto (1983) 1 S.C.N.L.R. 142 at p.160. That has been the policy of this Court. But that policy presupposes that proper parties are before the Court. Dead men do not appeal. There was no doubt that Aaron Ngonadi died on 4/4/77. That fact was alleged in the affidavits of Clement Eze-Onwujiobi Nwamma at p.80 of the record and admitted by Peter Ngonadi (who now wants to be substituted for his late father) in paragraph 3 of his affidavit at p.92. There was therefore no doubt at all that Aaron Ngonadi died on 4/4/77. The matter was thus not "contentious" as the Court below, with respect, imagined and there was no need for a death certificate, again with respect, as the Court below implied.
It is not a mere procedural defect that an appeal has been filed in the name of a dead person. It is a radical and fundamental error which goes even to the issue of jurisdiction. One pre-requisite of the exercise of jurisdiction by a court as decided in Madukolu & ors. v. Nkemdilim (1962) 1 All N.L.R. 587 at 595 is:
(3) the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction."
There is no process of our law under which a dead person can initiate an appeal. But there is a condition precedent to the exercise of appellate jurisdiction where a party dies but his right to appeal subsists. That is the procedure set out in section 222(a) of the 1979 Constitution. Peter Ngonadi should have applied under that section of the Constitution for leave of the High Court or Court of Appeal to exercise the right of appeal which his deceased father undoubtedly had before his death. This he did not do. And it was this that would have ignited the jurisdiction of the Court. And it is after he had done that the issue of doing substantial justice between the parties would even arise but not before.
For all the reasons given above and for the fuller reasons in the lead judgment of my learned brother, Craig, J.S.C., which I now adopt as mine, this appeal ought to be allowed and same is hereby allowed. I will abide by all the consequential orders made in the lead judgment.
Wali, J.S.C. I have had the privilege of reading before now, the draft of the lead judgment just delivered by my learned brother Craig, J.S.C.
The fact of the case have been ably and adequately dealt with by my learned brother Craig, J.S.C. and I have nothing more useful to add. I entirely agree with the reasoning and the subsequent conclusion. For those same reasons which I hereby adopt as mine, I allow the appeal and I abide by the consequential orders made in the lead judgment.