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CaseLaw

Eyesan V. Sanusi (1984) CLR 7© (SC)

Judgement delivered on April 13th 1984

Brief

  • Actio Personalis morituri cum persona
  • Right of appeal
  • Succession under Yoruba customary law
  • Section 15 of the Administration of Estates Law
  • Section 16 Court Of Appeal Act
  • Order 16 Rule 2 of the Federal High Court (Civil Procedure) Rules 2009
  • Order 3 Rule 23 of the Court of Appeal Rules 1981
  • Order 9 Rule 3(1) of the Supreme Court Rules 1977

Facts

The appellant herein was the plaintiff in suit No.LD/208/75 he instituted against Y.O. Sanusi in the High Court of Lagos State, Lagos Judicial Division on the 25th day of February, 1975. In that suit, he claimed:

  • (1)
    N100.00 general damages for trespass committed by the defendant, his servants and or agents on the plaintiff's land situate at Toye Kuti Street, Igbobi, Lagos State, edged green on the plan No.A1/1975 filed along with the statement of claim covered by certificate of purchase dated the 7th day of February, 1972 and registered as No. 58 at page 58 in volume 1389 of the Register of Deeds in the office at Lagos,
  • (2)
    An order of perpetual injunction restraining the defendant, his servants and/or agents from further trespass to the said land".

Pleadings were filed and duly served and the issues joined came up for hearing before Ademola Johnson, J. At the conclusion of the hearing, he delivered a well considered judgment wherein he dismissed the suit on the 20th day of March, 1981. Being dissatisfied with the decision, the plaintiff filed his notice and grounds of appeal to the Federal Court of Appeal on the 24th day of March 1981. On the 1st day of April 1982, before the appeal was heard and disposed of in the Federal Court of Appeal, the defendant/respondent died intestate.

  • "3.
    That the defendant, Yesufu Olorunsola Sanusi died in Lagos on the 1st April, 1982 after the appeal herein was entered in this Honourable Court;
  • (6)
    That I have made enquiries as to the defendant's children and discovered that one Mr. Taurid Sanusi of the Federal Government Press, Lagos is the eldest child of the deceased and now Head of his family;
  • (7)
    That one Alhaji Tajudeen Sanusi gave evidence as a son of the defendant;
  • (8)
    That I verily believe that Taurid Sanusi and Alhaji Tajudeen Sanusi are competent persons to represent the interest of the family (i.e. children of the deceased) and that they are proper persons who ought to be substituted herein for the deceased defendant as respondent to continue with the case for themselves and on behalf of the family of Y.O. Sanusi (deceased)".

The respondents filed no counter-affidavit but through their counsel opposed the application for substitution. The learned counsel raised 3 grounds of objection.

They are:

  • (1)
    That there was no evidence that consent of the parties sought to be substituted had been obtained.
  • (2)
    That the court has no jurisdiction to make any party respondent in an appeal/the order prayed for (sic)
  • (3)
    As the application may be regarded as one to 'carry on proceedings' it must be shown to be necessary. That a claim for trespass and an injunction is a personal action which dies with the person."

  • In a reserved ruling, the Federal Court of Appeal (Kazeem, Nnaemeka-Agu and Mohammed, JJ.CA) refused the application and dismissed it.

    Dealing with the main reason for the refusal, Kazeem, J.C.A in his ruling (concurred in by Nnaemeka-Agu and Mohammed JJ.CA) observed and held as follows:

    "There is no evidence that the persons sought to be substituted in these proceedings had trespassed on the land in dispute and there is nothing either to show that they had consented to be joined. As a matter of fact, they are opposing this application on those grounds.

    The maxim applicable is 'actio personalis morituri cum persona' meaning a personal action dies with the person. This maxim does not apply to personal actions founded on contract nor to cases where the deceased wrongfully appropriated property (Philips v. Homfray 1883) 24 Ch D. 439. All other causes of action subsisting against or vested in a person survive against or, as the case 20 may be, for the benefit of, his estate. In this case, if the right found in favour of the respondent had enured to the benefit of the estate, the persons sought to substituted being persons who would inherit the estate of the respondent on his death intestate would have been the proper persons to be substituted. But I have found supra that the right does not enure to the benefit of the respondent's estate."

    Aggrieved by this decision, the appellant appealed to this Court to reverse the decision.

Issues

  • Whether the maxim Actio Personalis morituri cum persona was applicable...
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