MARGARET NZOM  V JINADU

MARGARET NZOM V JINADU


IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 27TH DAY OF FEBRUARY, 1987


APPEAL No: SC.113/1985

CITATION: (1987) 2 LLER 1

Alternative Citation:

(1987) NWLR (Pt. 51) 533

Before Their Lordships

ANDREWS OTUTU OBASEKI, J.S.C.

MUHAMMADU LAWAL UWAIS, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

SAIDU KAWU, J.S.C.

CHUKWUDIFU AKUNNE OPUTA, J.S.C.

 


BETWEEN

MARGARET NZOM & ANOR

(Appellants)

AND

S.O.JINADU

(Respondents)


 

RATIO/PRONOUNCEMENTS

ACTION

Parties to an action; Person before the law–Can a dead man be a party to an action

…dead men are no longer persons in the eye of the law. The personality of a human being is extinguished by his death. A dead man cannot therefore represent the family of another dead man especially when, as in this case, Patrick Nzom died 22 years before J. C. Nzom. The position is that as a Writ issued on 10/2/73 against Patrick Nzom who died in 1949, that is 21 years before the trespass complained of, the Writ is null and void. Per OPUTA, J.S.C. READ IN CONTEXT

Commencement of an action–Service of processes; On the indispensable role of service of process as the foundation of the jurisdiction of the court; Where party is dead and service cannot be effected; effect of

The issue here is slightly different being whether a living Plaintiff can sue a dead defendant, a defendant who at the time he brought his action the Plaintiff did not know that he was dead.This naturally leads on to the case of Skenconsult (Nig.) Ltd. & anor. v. Godwin Sekondy Ukey (1981) 1 S.C.6. At p.26 this Court held:-“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.” No one can doubt that service of a Writ is a sine qua non to effective and competent adjudication. But there are so many modes of service. Per OPUTA, J.S.C. READ IN CONTEXT

Writ Issued Against a dead person–Whether void; and whether same can be cured by substitution of parties

It is now well settled that where an act is void, it is void and nothing can be added to it. It is expressed in the Latin ex nihilo nihil fit. Hence if the writ of summons against a non-juristic person is void, it admits of no additions or accretion of other persons. As Denning L.J. expressed it commenting on nullity succinctly in U.A.C. Ltd. v. Macfoy (1961) 3 ALL E.R at p.1172, “If an act is void then it is in law a nullity. It is not only bad, but incurably bad … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” Per KARIBI-WHYTE, J.S.C. READ IN CONTEXT

Cause of Action–Condition precedent for the survival of action at the death of a person

…for Order 15 Rule 6A sub-rule 3 to apply the following conditions must co-exist. Condition No.1:That at the time the action was brought the defendant was dead. This condition was satisfied in this case. The present Writ was issued on 10/2/73 whereas Patrick Nzom was alleged to have died in 1949. The Plaintiff had not challenged the averments in the various affidavits stating that Patrick Nzom died in 1949. I therefore take that fact as admitted on all sides. Desalu, 1. at p.114 of the record held that the “1st Defendant (Patrick Nzom) died before the institution of this action”. Condition No. 2: That there was a cause of action against the defendant before his death. Condition No.3:That, that cause of action survived his death.I did not comment on Condition No.2 until I had stated Condition No.3 because the wording of R.S.C. 15/6A/3 did not expressly use those words but it is my view that Condition no.2 must exist before Condition No.3. One cannot logically or even possibly talk of a cause of action surviving death if there were no cause of action either before or at the time of death. The word survive simply means to outlive, to live beyond the life of, to live longer than. to out-last etc. A cause of action cannot live longer or last longer than the defendant if it did not exist when the defendant was alive. Per OPUTA, J.S.C. READ IN CONTEXT

Cause of Action–Statutory modification of the principle of Actio personalis moritur persona

The practical importance of this maxim has now almost disappeared, as the maxim has been seriously eroded by Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 which provides in general terms that on the death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate. Per OPUTA, J.S.C. READ IN CONTEXT

LEGAL PERSONA–Legal capacity of dead person in the eye of the law

Now dead men are no longer persons in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be used. This was the common law view but so many Statutes have intervened that one will be very slow to pontificate or be dogmatic. Per OPUTA, J.S.C. READ IN CONTEXT

Cause of Action–Only juristic persons possess right of actions

The rule in Tetlow v. Orela Ltd. (supra) which states that no action can be brought in the name of a dead plaintiff is still good law. It seems to me that the fundamental reason for this rule is the generally accepted one that only juristic persons are capable of exercising legal rights and being subjected to legal duties. A human being of full age is such person and is a juristic person. Infants, lunatics so found are not juristic persons and can sue and defend actions by their next friend. A dead man is obviously not a juristic person. If he cannot bring an action, I do not see how a claim can be made against him in person, and not his estate. In Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant Ltd. (1961) All NLR, 116 it was held that the General Manager, G. B. Ollivant Ltd. not being a juristic person could not be made a defendant and a party to the action. The General Manager was accordingly struck out. See also Martins v. Federal Administrator-General (1963) L.L.R. 65.

LEGAL MAXIMS

Actio personalis moritur cum persona

Actio personalis moritur cum persona literally means:- A personal right of action dies with the person. This is a common law principle. Under that principle most actions in tort died with the person, whether the person dying was the injured party or the wrong doer. Per OPUTA, J.S.C. READ IN CONTEXT

PRACTICE AND PROCEDURE

Writ of Summons–Can a void writ be saved by amendments to it’s particulars?

Once a writ is void, no amendment of the particulars, title etc. can save it. It is incurably bad and all the amendments effected are equally nullities. See Macfoy v. UAC Ltd. (1962) AC 152, Sken Consult (Nigeria) Ltd. v. Godwin Ukey (1981) 1 Sc. 6 at 9, Opebiyi v. Oshoboja (1976) 9-10 SC.195 at 201

 


LEAD JUDGEMENT DELIVERED BY OPUTA, J.S.C.


The Plaintiff, S. O. Jinadu sued one Patrick Nzom (for himself and on behalf of the family of J. C. Nzom deceased). The writ of Summons is at page 5 of the record of proceedings and was dated 14th February, 1973. The Treasury Receipt C.R.897461 for filing was dated 10/2/73. It is therefore permissible to assume that the Writ was filed on 10/2/73. The Plaintiff filed his Statement of Claim on the 30/6/73. The Writ and the Statement of Claim could not be served on Patrick Nzom who, it was alleged, died sometime in 1949. This fact was however unknown to the Plaintiff until long after filing the Writ. On the 26th day of March, 1973, Kazeem, J. (as he then was) granted the Plaintiff leave to serve the Writ and other processes by substituted means, namely by publication in the Daily Times Newspaper. This was done on the 11th February, 1975.

Then followed an unending litany of affidavits, motions, objections etc,. The fact is that this case filed on 10/2/73 had not been heard on the merit for the past 13 years. An objection was taken in the trial Court on 2/2/81 before Desalu, J. that the Writ of Summons was issued against Patrick Nzom who was on 10/2/73 the day the Writ was issued, not alive but dead – dead since 1949. It is important here to note that the motion for an “Order striking out the above suit on the ground that the Writ of Summons commencing the Suit having been issued against a dead person, the same is null and void “was brought not by Patrick Nzom (who has been reported dead) nor by his personal representatives. The motion was brought by Margaret Nzom and Cyprian J. Obi. The question that naturally arises is what business had Margaret Nzom and Cyprian Obi with a suit against a dead man whose estate they were not representing? The answer seems to be that in the original Writ of Summons Patrick Nzom was sued “for himself and an behalf of the family of J.C. Nzom, deceased” and as sworn to in paragraph 5 by Andrew Nwachukwu Anyamene, learned counsel for Margaret Nzom and Cyprian Obi on 3rd day of April, 1978 (p.24 of the record):-

“5. One of the property in respect of which the said application (for the grant of letters of administration) is being made is the house situate at No.39 Seriki Aro Avenue the subject matter of the above suit”

In other words Margaret Nzom the eldest widow of J.C. Nzom and Cyprian J. Obi, first cousin, of late J.C. Nzom were to administer the estate of late J.C. Nzom for his beneficiaries.

This somehow explains the motion at p.26 of the record and the affidavit at p.27 thereof. Whether joining an action brought against the deceased, Patrick Nzom, was the right step to take to protect the estate of J.C. Nzom is another matter. However in the motion, the applicants, Margaret Nzom and Cyprian Ikeokwu Obi prayed “for an Order that they be joined as co-defendants in the Suit”. They were so joined. The Order made by Desalu, J. at p.28 was “Order as prayed”.

I said earlier on that there was an application made before Desalu, J. to strike out the Writ of Summons commencing this action as invalid, null and void (see p. 106 of the record). Arguments were heard on both sides and on the 6th day of March, 1981, Desalu, J. dismissing the applicants’ motion to strike out the Writ ruled inter alia:-

“(i) I have earlier on in the Ruling held that the Writ of Summons “commencing the suit” is the amended Writ of Summons against three Defendants.

(ii) The applicants sought to be joined in this case and they were joined as Co-Defendants in this case.

(iii) Even if the case against the 1st Defendant fails and the institution of the action against him is null and void, it is my considered view that this fact, does not vitiate the Writ of Summons sufficient to declare it null and void, in its entirety.

(iv) The Writ of Summons subsists against the Applicants in this matter.”

The present Appellants dissatisfied and aggrieved appealed against the ruling of Desalu, J. to the Court of Appeal Lagos Division Coram Ademola, Mohammed and Kutigi, J.J.C.A. In a lead judgment by Kutigi, J.C.A., to which Ademola and Mohammed, J.J.C.A., concurred, the Court of Appeal dismissed the Appellants’ appeal and ordered the parties “to go back to the Ikeja High Court and proceed with the trial. In this lead judgment, Kutigi, J.C.A. at page 177 lines 20-22 held:-

“Order 15 Rule 6A of the English Supreme Court Rules cited by Mr. Lardner are clearly provisions in respect of Proceedings Against Estates and does not in my opinion apply. This is so because as I have stated earlier on in this Ruling the trial court had on 15/1/79 granted leave for the Writ and Statement of Claim to be amended”.

The Appellants again lost in the Court of Appeal as they had lost in the Court of first instance.

Again dissatisfied and aggrieved the appellants have now appealed to the Supreme Court of Nigeria against “the whole decision” of the Court below. The Respondent did not cross appeal against the decision of the Court below that “Order 15 Rule 6A of the English Supreme Court Rules….are clearly provisions in respect of Proceedings against Estates and does not apply to this case”. Rather he filed a Notice of Intention to Contend That The Judgment should Be Affirmed On Grounds Other Than Those Relied On By The Court Below.

Both sides agree that the questions for determination in this appeal are asset out in the Appellants’ Brief as follows:-

“(a) Is a writ of summons issued against a dead person null and void or merely defective?

(b) If a nullity, can such a writ be validated by subsequently joining thereto living persons?

(c) If a person is joined in a suit as administrator when he has not obtained letters of administration, is the joinder null and void?

(d) Was it competent for the Court after joining the appellants herein in the suit as administrators subsequently to revoke the said Order so that they are joined personally?”

Before tackling the real issue in dispute, it is necessary to state the facts correctly as no Court is allowed to travel beyond the facts of the case before it. Similarly a purported question for determination which travels beyond those facts is merely speculative and purely academic.

What then was the application for joinder made by the Appellants and what was the order of Court? These are facts which must be stated correctly. The motion for joinder was brought by the Appellants. The parties to that motion were stated thus:-

S. A. Jinadu …………………………….Plaintiff

and

1. Margaret Nzom)

2. Cyprian Ikeokwu Obi)……………………..Parties to be joined

The heading above did not suggest that the parties who sought to be joined were seeking such joinder in their capacity as administrators of any estate. Also in the motion itself the prayer was for an Order:-

“that Margaret Nzom and Cyprian Ikeokwu Obi be joined as co-defendants in this suit” (see p.26 of the record).

The Order for joinder made by the trial Court was as follows:-

“The Order is as prayed. It is hereby ordered that Margaret Nzom and Cyprian Ikeokwu Obi are hereby joined as the 2nd and 3rd Defendants in this matter” (see p.28 lines 28-30 of the record). There was no order of Court joining the Appellants as administrators of the estate of J.C Nzom. I admit that in an affidavit sworn to by Andrew Nwachukwu Anyamene, legal practitioner of 46 Zik Avenue, on 3rd April 1978 paragraph 3 therein referred to “grant of letters of administration is likely to be made within three weeks” and in paragraph 10 it was deposed that “I have advised the applicants for letters of administration and the beneficiaries that their best course of action is to apply to be joined as defendants in the above suit …. ” yet they did apply to be joined as defendants simpliciter. They did not apply to be so joined in their capacity as administrators of the estate of late J.C. Nzom. Not only that they did not so apply but also they could not have so applied since they, on that date, had not been granted any letter of administration. In any event the order made by Desalu, J. is clear and unambiguous. It speaks for itself. In view of that order, questions (c) and (d) of the Questions For Determination in this appeal do not arise. It will therefore be an exercise in futility to consider them and I will not consider them.

Question (a) for determination is the crux of the matter. Is a writ issued against a dead man null and void? Mr. Anyamene says yes it is null and void. Mr. Lardner says No it is not null and void. Mr. Anyamene relied substantially on the latin maxim Actio personalis moritur cum persona and on the several cases decided by our Courts relating to that maxim and again on the English case of Dawson (Bradford) Ltd. & ors v. Dove & anor. (1971) 1 Q.B.D. 330: (1971) 1 All E.R. 554 at p.558. Mr. Lardner on the other hand pitched his tent on the English Order 15 Rule 6A. I will now proceed to consider the contention of each party to this appeal.

Actio personalis moritur cum persona literally means:-

A personal right of action dies with the person. This is a common law principle. Under that principle most actions in tort died with the person, whether the person dying was the injured party or the wrong doer. The practical importance of this maxim has now almost disappeared, as the maxim has been seriously eroded by Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 which provides in general terms that on the death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate. Strictly speaking the maxim presupposes that the cause of action arose when both parties were alive, that one party took out an action and that during the pendency of that action but before its conclusion one of the parties died. In such a case the cause of action will then die with the deceased party. In this case on appeal the cause of action was alleged to have arisen in 1970 “immediately after the Nigerian civil war” and the cause of action was against J.C. Nzom. In spite of all these, it was Patrick Nzom who was alleged to have died in 1949 who was sued. In other words by the time the cause of action arose in 1970, Patrick Nzom was 21 years dead. Patrick Nzom cannot by any stretch of the imagination be brought under the maxim actio personalis moritur cum persona. The maxim is thus completely irrelevant to any proper consideration of Question (a) for determination in this appeal.

Mr. Anyamene, S.A.N. cited some Supreme Court decisions in support of his argument. The first case he referred the Court to was I. O. Eyesan v. Y. O. Sanusi (1984) 4 S.C. 115. In that case the Plaintiff Eyesan instituted an action No.LD/208/75 against Y.O. Sanusi as Defendant. Both parties were alive when the action was instituted. Both sides filed and exchanged pleadings fought the case to a conclusion in the Lagos High Court which dismissed the suit of the Plaintiff on 20th March 1981. The Plaintiff then appealed to the Federal Court of Appeal and filed his Notice and Grounds on the 24th 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. There was then an application to substitute his two children namely Taurid Sanusi and Alhaji Tajudeen Sanusi as Respondents for the purpose of prosecuting the appeal. The application was refused by the Court of Appeal Coram Kazeem: Nnaemeka-Agu and Mohammed, J.J.C.A. It was in explaining and giving reasons for the refusal of the Court to substitute the children of the Defendant/Respondent (since deceased) for their father Sanusi that Kazeem, J.C.A. (as he then was) referred to the maxim action personalis moritur cum persona and held:-

“In this case, if the right found in favour of the respondent had enured to the benefit of his estate, the persons sought to be substituted being persons who would inherit the estate of the respondent on his death intestate would have been proper persons to be substituted. ”

There was an appeal against this refusal to the Supreme Court. Mr. Lardner, S.A.N. appeared in that appeal for the Appellant and argued that the common law maxim “‘actio personalis moritur cum persona” no longer has any application in Lagos State. The applicable law, he continued, is Section 15 of the Administration of Estates Law cap 2 of the Laws of the Lagos State 1973 which expressly provided that:-

“after the commencement of this law all causes of action subsisting against or vested in him shall survive against or as the case may be, for the benefit of his estate.

In a well-considered and illuminating lead judgment to which other justices of the panel concurred, my learned brother Obaseki, J.S.C. held that the cause of action did not die with Sanusi but survived against his estate.

I do not know why Mr. Anyamene cited and relied on this case. The facts of that case are very different from the facts of the case now on appeal as both Eyesan and Sanusi were alive when LD/208/75 (which came to the Supreme Court as S.C.107/82) was filed; both were alive when judgment was delivered by the Lagos High Court; both were alive when the appeal to the Federal Court of Appeal was lodged. Sanusi however died before the appeal was heard by the Federal Court of appeal and there was an application to substitute Sanusi’s two children. On the other hand, Patrick Nzom died 21 years before the Writ in this case (now on appeal) was filed. The application made in this case was not to substitute Margaret Nzom and Cyprian I. Obi for Patrick Nzom. No. The application was to add them as co-defendant along with Patrick Nzom. This application was granted. Secondly the decision of this Court in Eyesan’s case supra seems to be that Section 15 of the Administration of Estates Law of Lagos State now prevails over the anciest maxim actio personalis moritur cum persona. This decision is definitely against the contention of Mr. Anyamene.

It is very necessary to find out whether Writ of Summons filed against Patrick Nzom, deceased was in law null and void for if the answer is yes then the joinder of the 2nd and 3rd Defendants by the order of Desalu,will not give life to a dead Writ, still born as it were, for ex nihilo nihil fit and acere sorium sequitur principle. The 2nd and 3rd Defendants were added as Defendants to Patrick Nzom and an accessory thing goes with the thing to which it is accessory. So therefore if the Writ against Patrick Nzom was null and void, it will be void for all purposes and it will not admit any addition or accretion of more defendants.

Mr. Anyamene also cited to us the case of Tesi Opebiyi v. Shittu Oshoboja & anor. (1976) 9 & 10 S.C. 195. In that case the parties sued and were sued as representing respectively members of the Fagbile Family and Koaki Family both of Ijegun. The Plaintiff/Family asked and obtained an extension of time within which to appeal and leave to appeal on 25th March’ 1974 and the Court fixed the appeal for hearing on 15th April 1974,not knowing that the two Defendants representing the Koaki Family had died since 1967. The order of 25th March 1974 granting the Appellants in that case an extension of time within which to appeal and leave to appeal was thus made against the dead and non-existent respondents. The Court wondered how they were served. Like the case on appeal, Patrick Nzom could not be served personally. Service was by publication in the Daily Times Newspaper. In Tesi Opebiyi’s case supra an application was brought for an order for the substitution of Taiye Oshoboja for the dead Defendants/Respondents. Chief Williams, S.A.N. for the Respondents opposed the application on purely legal and procedural grounds. After hearing argument on both sides, the question for determination was:- What is the position in a case where, after judgment had been given in the Court below the Defendants before the Court had died?

The Court answered the above question thus:-

“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”.

It is on that basis namely that the action could not continue against dead Respondents that this Court further held:-

“Consequently, there is no appeal pending before the Court in respect of which Taiye Oshoboja could be substituted for the defendants who had died. Therefore the application for substitution is, in our view, misconceived and it is accordingly struck out.”

Mr. Anyamene relied heavily on the Court’s observation reproduced above. The question now is – are the facts of the case now on appeal on all fours with Tesi Opebiyi’s case supra? The answer has to be no. Opebiyi’s case is distinguishable. In that case unlike the one now on appeal:-

i. Both parties were alive when the action was taken.

ii. Both parties were alive when judgment was given.

The only problem in Opebiyi’s case was that the order for extension of time within which to appeal was made when there were no Respondents to the said appeal as the original defendants who should have been the Respondents died before the Court’s Order for extension of time was made. The issue here is slightly different being whether a living Plaintiff can sue a dead defendant, a defendant who at the time he brought his action the Plaintiff did not know that he was dead.

This naturally leads on to the case of Skenconsult (Nig.) Ltd. & anor. v. Godwin Sekondy Ukey (1981) 1 S.C.6. At p.26 this Court held:-

“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.”

No one can doubt that service of a Writ is a sine qua non to effective and competent adjudication. But there are so many modes of service. The trial Court in this case (Patrick Nzom’s case) gave the plaintiff, S. O. Jinadu leave to effect substituted service by publication in the Daily Times Newspaper. This was done. Skenconsult’s case supra therefore does not address itself to live issue, the real question in controversy namely whether a Writ filed against a dead defendant is ipso facto null and void.

The next case relied upon by Mr. Anyamene was Nigerian Nurses Association and anor. v. Attorney-General of the Federation & 2 Ors. (1981) 11-12 S.C.1. The question raised by this appeal was the legal existence of the Plaintiffs/Appellants to give them competence to sue the Defendant/Respondent in the Court of first instance. By the provision of the Trade Union (Amendment) Decree 1978, now Act, 1978; the Plaintiffs/Appellants had ceased to exist as legal persons capable of suing or being sued at the time they instituted the suit and therefore the judgment of the High Court in their favour was given per incuriam. Patrick Nzom was not the Plaintiff in the case now on appeal. He was sued as a Defendant. But then he had ceased to exist as an ordinary human being. The Nigerian Nurses Association was a legal persona as opposed to an ordinary human person. It is true that the dissolution of legal persona is analogous to the death of an ordinary human person. Now dead men are no longer persons in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be used. This was the common law view but so many Statutes have intervened that one will be very slow to pontificate or be dogmatic. The question will now be whether or not there are any statutory provisions applicable to Lagos State, the situs of the land in dispute, giving S.O. Jinadu (the Plaintiff who took out the Writ of Summons in the case) the right to sue Patrick Nzom deceased.

Mr. Anyamene answered the above question in the negative and referred the Court to the case of Dawson (Bradford) Ltd. & Ors v. Dove & anor (1971),1 All E.R. 554. The facts of Dawson’s case supra come closest to the facts of this case. Three Writs were issued against Dawson deceased. By amendment the executors of late Dawson were made defendants. These executors then took out summonses to set aside the Writs on the ground that Dawson was already dead when those Writs were issued. The contention in Dawson’s case was that where a Writ has been issued against a dead man there is no power under the rules of Court to amend the Writ by substituting the executors in place of the deceased. The portions I italicized above forcibly brought out the central issue in Dawson’s case which issue is also the crux of the matter in this case. In Dawson’s case supra, Mackenna, J. reviewed the relevant and existing Rules of the Supreme Court in England and the cases of Clay v. Oxford (1866) L.R.2 Exch. 54 and Tetlow v. Orela Ltd. (1920) 2 ‘Ch. 24 and held that the three Writs issued against Mr. Dawson be set aside on the ground that when they were issued Mr. Dawson was already dead. Dawson’s case offers the strongest support for Mr. Anyamene’s contention.

I will now turn to Mr. Lardner’s arguments in support of his proposition that the Writ in this case issued on 10/2/73 against Patrick Nzom who died in 1949 was and still remains a valid Writ. I will say straight away that I agree with Mr. Lardner that at this stage the Court should not concern itself with the merits or demerits of the Plaintiff’s case nor with its eventual outcome. What is in issue now is whether or not the Writ commencing the action against Patrick Nzom deceased was valid or null and void ab initio. Mr. Lardner then referred to the Practice and Procedure at the High Court of Lagos State as provided for by Section 12 of Cap 52 Laws of Lagos State 1973. This Section provides:-

“12. The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other enactment, or by such rules and orders of Court as may be made pursuant to this or any other enactment. and in the absence of such provisions in substantial conformity with the practice and procedure for the time being of the High Court of Justice in England”.

Mr. Lardner then submitted that since no local rules have been made covering the point now in issue namely, whether a Writ issued against a deceased/defendant is valid or null and void ab initio recourse will have to be had to the Rules of the Supreme Court of England especially to Order 15 Rule 6A thereof.

The English Rules of the Supreme Court Order 15 Rule 6A sub-rule 3 stipulates:-

“6A-(3) An action purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate ….. whether or not a grant of probate or administration was made before its commencement” .

By the above the fact of death before the commencement of an action does not necessarily render the Writ null and void. But one has to look at the rule more closely. The white Book considered at p.186 the Effect of the rule as follows:-

(i) One effect is that the rule does not apply to an action begun in the name of a dead man as plaintiff. Such actions still remain nullities. In other words Clay v. Oxford supra and Tellow v. Orela Ltd supra both still remain good law.

(ii) Another effect of the rule and one very apposite to the issue calling for determination in this appeal is 15/6A/3 sub nomen

“15/6A/3 – If at the time an action is brought the person against whom it is brought is already dead, if the cause of action survives his death the action must be treated as having been brought against his estate; the action will no longer be a nullity”.

The above effect reverses the decision in Dawson (Bradford) Ltd. v. Dove supra.

Mr. Lardner appears to be batting on a very strong wicket here having bowled out Dawson v. Dove supra on which Mr Anyamene constructed his attack on the Writ now in dispute. But how strong really is Mr Lardner’s wicket? In my view for Order 15 Rule 6A sub-rule 3 to apply the following conditions must co-exist.

Condition No.1:

That at the time the action was brought the defendant was dead.

This condition was satisfied in this case. The present Writ was issued on 10/2/73 whereas Patrick Nzom was alleged to have died in 1949. The Plaintiff had not challenged the averments in the various affidavits stating that Patrick Nzom died in 1949. I therefore take that fact as admitted on all sides. Desalu, 1. at p.114 of the record held that the “1st Defendant (Patrick Nzom) died before the institution of this action”.

Condition No. 2:

That there was a cause of action against the defendant before his death.

Condition No.3:

That, that cause of action survived his death.

I did not comment on Condition No.2 until I had stated Condition No.3 because the wording of R.S.C. 15/6A/3 did not expressly use those words but it is my view that Condition no.2 must exist before Condition No.3. One cannot logically or even possibly talk of a cause of action surviving death if there were no cause of action either before or at the time of death. The word survive simply means to outlive, to live beyond the life of, to live longer than. to out-last etc. A cause of action cannot live longer or last longer than the defendant if it did not exist when the defendant was alive. Now applying the above to the facts of this case, as can be gathered from the Writ, not the merits, but just the bare facts on which the Writ was issued, one discovers that:-

1. The land the subject matter of the action is the hereditaments situate at No. 39 Seriki Avenue Ikeja.

2. The Plaintiff is the bona fide owner of No.39 Seriki Avenue Ikeja by a registered Conveyance dated 31st December, 1960.

3. Immediately the Nigerian Civil War ended in 1970, J.C. Nzom unlawfully took possession of the said premises and starred to collect rents there at and was collecting until he died in June 1972.

From the above, it is obvious from the facts disclosed in the Writ of Summons that J.C. Nzom was the tort feasor. The Plaintiff had a cause of action against him when he was alive. If he died, as he did in 1972, that cause of action will survive him. If the present Writ issued on 10/2/73 were issued against J.C. Nzom, it will be saved by R.S.C. Order 15 r.6A(3). But Patrick Nzom died in 1949 long before the conveyance dated 31st December, 1969 which gave the Plaintiff his title to the property at No. 39 Seriki Avenue Ikeja “the unlawful possession” of which gave the Plaintiff his cause of action. Patrick Nzom died before the Plaintiff became the owner of No.39 Seriki Avenue and before the tort complained of by the Plaintiff was committed in 1970. In my view, from all the facts clearly stated in the Writ of Summons in this case, the Plaintiff had no cause of action whatsoever against Patrick Nzom. There was therefore no cause of action that could or did survive his death. Order 15 r.6A sub-rule 3 is therefore not applicable to Patrick Nzom.

On the face of the Writ at page 5 of the record of proceedings Patrick Nzom was sued (for himself and on behalf of the family of J.C. Nzom deceased). The question now is – Will this make any difference to the legal position? The short answer is that dead men are no longer persons in the eye of the law. The personality of a human being is extinguished by his death. A dead man cannot therefore represent the family of another dead man especially when, as in this case, Patrick Nzom died 22 years before J. C. Nzom. The position is that as a Writ issued on 10/2/73 against Patrick Nzom who died in 1949, that is 21 years before the trespass complained of, the Writ is null and void. As a Writ issued against Patrick Nzom representing the family of J.C. Nzom, deceased, the Writ was also null and void. As a Writ issued against the estate of Patrick Nzom it runs counter to the averments in the Writ itself as the estate of Patrick Nzom had nothing whatsoever to do with the facts stated in the Writ. There is absolutely nothing on the Writ to suggest that it was issued against the estate of J.C. Nzom as opposed to one issued against “the family of J.C. Nzom”.

In the final result, I hold that the Writ in this case is null and void. I also hold that the joinder granted by Desalu, J. must also to that extent for that reason be null and void as something cannot be added to nothing. For the above reasons, I will allow this appeal and set aside the judgment of the Court below as well as that of the trial Court. There will be costs to the Appellants in this Court which I assess at N300.00 and in the Court below assessed at N150.00 and in the Court of first instance assessed at N150.00.

OBASEKI, J.S.C.: The main issue raised in this appeal is as to the validity of the writ of summons taken out by the respondent against Patrick Nzom who was sued in a representative capacity for himself and on behalf of the family of J.C. Nzom before the appellants were joined as 2nd and 3rd defendants on their own application at the High Court of Lagos State, Ikeja.

Before the High Court, (Desalu, J.), the appellants, by notice of motion, applied for an order striking out the suit on the ground that the writ of summons commencing the suit having been issued against a dead person, Patrick Nzom, was null and void. In the supporting affidavit, the 1st appellant deposed, inter alia:

“I know as a fact that the said Patrick Nzom died intestate at Ozubulu in 1949.”

She also deposed that she was the widow of Joseph Chukwumezie Nzom and that he died intestate on the 25th day of June, 1972 in Anambra State. Thereafter, on the 24th day of January, 1979, the High Court of Anambra State granted letters of administration to her and the 2nd appellant. She also deposed that J.C. Nzom acquired his interest in the land No.39 Seriki Aro Avenue, Ikeja in 1962.

Patrick Nzom, she further deposed and contrary to the averment in the statement of claim dated 29th June, 1973 that Patrick Nzom was a brother of J.C. Nzom. The respondent, in his statement of claim had alleged that Patrick Nzom was the son of J. C. Nzom and that he was then collecting rents from the property in dispute. The writ of summons was issued on the 10th of February, 1973.

The appellants on 15/4/78 by motion dated 7th April, 1978 applied to be joined as co-defendants. In the supporting affidavit, the 1st appellant deposed that the 1st defendant was one of the children of her late husband but died many years before the death of her husband. She also deposed that the landed property, 39 Seriki Aro Avenue, Ikeja was acquired by her husband in 1962.

On the 29th day of November, 1978, the respondent, by notice discontinued the suit against the 1st defendant and continued the suit against the appellants who were co-defendants.

In his ruling on the motion to strike out the suit after hearing arguments on the motion, Desalu, J. held that

“Since the date of death of the 1st defendant is not controverted by affidavit or otherwise, I cannot but hold that he had died before the institution of the action”.

He proceeded to add the following comments and observations:

“The present application was not brought timeously. The applicants sought to be joined in this case and they were joined as co-defendants in the case.

It must be remembered that the 2nd and 3rd defendants and present applicants were sued not as administratrix and administrator of the estate of J.C. Nzom. Even if the case against the 1st defendant fails and the institution of the action against him is null and void, it is my considered view that this fact does not vitiate the writ of summons sufficient to declare it null and void in its entirety. The writ of summons subsists against the applicants in this matter.”

Against this Ruling, the appellants appealed to the Court of Appeal and lost. Kutigi, J.C.A. (with the concurrence of Ademola and Mohammed, JJCA.) in his judgment in the appeal said:

“In this case, I am satisfied that the writ subsists against the appellants and is not a nullity. It is true that section 12 of the High Court of Lagos Law Cap 52 says that:

‘The jurisdiction of the High Court shall so far as Practice and procedure is concerned, be exercised in the manner provided by this or any other enactment, or by such rules and orders of court as may be made pursuant to this or any other enactment, and in the absence of any such provisions, in substantial conformity with the practice and procedure for the time being of the High Court of Justice in England.’

But where there are provisions in the local Rules, resort cannot be made to English Rules (See Ademola II v. Thomas (1946) 12 WACA 81; Domingo Paul v. F.A. George (1959) 4 FSC.198) Order 15 Rule 6A of the English Supreme Court Rules cited by Mr. Lardner are clearly in respect of Proceedings Against Estates and does not, in my opinion, apply to this case. This is so because as I have stated earlier on in this Ruling, the trial court had on 15/1/79 granted leave for the writ and statement of claim to be amended and for the deletion of the words “for themselves and as administratrix and administrator of J.C. Nzom” from the title”.

Against this judgment, the appellants have appealed to this Court on two grounds.

Briefs were filed and in the appellants’ brief, the questions formulated for determination in this appeal are:

(a) Is a writ of summons issued against a dead person null and void?

(b) If a nullity, can such writ be validated by subsequently joining thereto living persons?

(c) If a person is joined in a suit as administrator when he has not obtained letters of administration, is the joinder null and void?

(d) Was it competent for the court after joining the appellants herein in the suit as administrators subsequently to revoke the said order so that they are joined personally?”

These questions have been considered in detail in the judgment delivered a short while ago by my learned brother, Oputa, JSC, the draft of which I had the privilege of reading in advance. I agree with the opinions expressed therein on all the issues raised as they accord with mine.

The facts of this case are unique in themselves. Standing out boldly is the death of Patrick Nzom. More fatal to the respondent’s case is the date of the death of Patrick Nzom which was 1949 vis-a-vis the date of the acquisition of interest in the property by J.C. Nzom. Also important is the date of the alleged trespass.

The plaintiff acquired the property, subject matter of the action on 31st December, 1969 when he bought the property from Adeniyi family, his predecessors in title. This is also the date given as the date the alleged trespass commenced. Patrick Nzom was already 20 years dead by then. He was also already dead before J.C. Nzom acquired his interest in the property in 1962.

The importance of these dates is brought out by the fact that it is the general common law that a writ issued against a dead person is a nullity see:

(1) Clay v. Oxford (1866) LR 2 Exch 54

(2) Tetlow v. Orela Ltd. (1920) 2 Ch 24

(3) Opebiyi v. Oshoboja (1976) 9-10 SC. 195 at 201.

But by section 12 of the High Court of Lagos Law Cap 52 which made Order 15 Rule 6A of the English Supreme Court Rules applicable, the law has been altered provided the cause of action survives.

Paragraph (1) reads:

“where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.”

Paragraph (2) reads:

“without prejudice to the generality of paragraph (1), an action brought against the “personal representative of A.B. deceased” shall be treated for the purpose of that paragraph as having been brought against the estate.” Paragraph (3) reads:

An action purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1) whether or not a grant of probate or administration was made before commencement.”

The first question to be determined in the application of this Rule is whether an action would have lain against Patrick Nzom if he had not died. The answer from the facts of the case before us must be in the negative.

The second question which would have arisen if the answer to the first question had been in the affirmative would have been whether the cause of action survives.

Since no action would have lain against him if he had not died, no cause of action survived his death. It should be observed that this action was not instituted against J.C. Nzom. If it had been instituted against J.C. Nzom, a different situation would have arisen.

Further, Patrick Nzom was sued as representing himself and the family of J.C. Nzom deceased. It is the law that a dead person cannot represent himself or anyone in any civil proceedings. The representative capacity in which Patrick Nzom was sued was not authorised by the court as no application for and no order of court was obtained authorising Patrick Nzom to represent the family of J.C. Nzom deceased. It is obvious that the plaintiff knew that J.C. Nzom was dead before he issued the writ. This is apparent from the ‘title to the case. That writ cannot properly be said to have been issued against J.C. Nzom. It was issued against Patrick Nzom (for himself and on behalf of the family of J.C. Nzom) as defendant.

The claim endorsed on the writ was (a) for injunction restraining the defendant, his servant and/or agents from further trespass to No. 39 Seriki Aro Avenue, Ikeja and (b) a true and full account of all moneys that have been collected by the defendant his servants and or agents or otherwise from the said premises since January, 1970 and payment over to the plaintiff of the gross amount collected.

In paragraph 9 of the original statement of claim filed before the appellants were joined, the respondent averred that:

“The defendant is now collecting rents from the said premises” After the application for joinder had been granted, the respondent in paragraph 10 of the amended statement of claim alleged:

“Notwithstanding the said judgment, the defendants and their servants and/or agents have continued to collect the rents and profits from the said property and they have prevented the plaintiff from collecting one kobo as rent since he bought the house at the end of 1969”

The action not having been taken against J.C. Nzom, it could not stand as an action against the estate of J. C. Nzom.

The original unamended writ is totally bad in all respects. The action is before a nullity. Since the action would not have lain against Patrick Nzom if he were alive and the action did not survive his death, the action is a nullity.

Order 15 Rule 6A of the English Supreme Court Rules is therefore inapplicable to save the situation. Dawson (Bradford Ltd.) v. Dove (1961) QBD 339 (1971) 1 All ER 554 will apply.

Order 15 Rule 6A of the English Supreme Court Rules does not affect the position of a writ taken out in the name of a dead plaintiff. The action is a nullity and there can be no substitution of his personal representatives.

See Clay v. Oxford (1866) LR. 2 Exch 54.

Tetlow v. Orela (1920) 2 Ch. 24, (1920) All ER rep 419.

Contrary to the opinion of the learned trial Judge, if the action against Patrick Nzom is void, the writ is a nullity and the joinder of the appellants in a non existing action is also a nullity.

Similarly, the learned Justice of the Court of Appeal, Kutigi, JCA could not be right in holding that the action subsists against the appellants. But I find myself in agreement with him that Order 15 Rule 6A of the English Rules of the Supreme Court cannot be invoked to save the writ for a different reason. I am unable to agree with the learned Justice Kutigi, JCA, that because the learned trial Judge had on 15th January, 1979 granted leave for the writ and statement of claim to be amended ‘and for the deletion of the words “for themselves and as administratrix and administrator of J.C. Nzom deceased” from the title the writ is saved from its invalidity.

Once a writ is void, no amendment of the particulars, title etc. can save it. It is incurably bad and all the amendments effected are equally nullities. See Macfoy v. UAC Ltd. (1962) AC 152, Sken Consult (Nigeria) Ltd. v. Godwin Ukey (1981) 1 Sc. 6 at 9, Opebiyi v. Oshoboja (1976) 9-10 SC.195 at 201.

I find merit in this appeal.

For the above reasons and the reasons so ably set out in the judgment of my learned brother, Oputa, JSC. I hereby allow the appeal and set aside the decisions of the Court of Appeal and the High Court and order that the writ commencing the action beset aside. The appellants are entitled to cost as ordered by my learned brother, Oputa, JSC.

UWAIS, J.S.C.: I have had a preview of the judgment read by my learned brother Oputa, J.S.C. I entirely agree with the reasons and conclusion therein. I have nothing to add.

Accordingly the appeal is hereby allowed with N300.00 costs to the appellants

KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother Oputa J.S.C. in this appeal, and I agree that this appeal be allowed. The only issue which calls for determination in this appeal is the contention by the appellants of the validity of the writ of summons issued against Patrick Nzom, who having died at the time of its issue.

The facts have been very fully stated in the judgment of my learned brother Oputa J.S.C. I need only here summarise it. Patrick Nzom against who the writ was issued, was alleged to have died sometime in 1949.Mr. S.O. Jinadu, the Plaintiff, in 1969 bought 39 Seriki Aro Avenue Ikeja from V. O. Adeniyi pursuant to a court judgment dated 27th April, 1967 in ‘suit No. IK/79/64, against J.C. Nzom. Patrick was the eldest son of J.C. Nzom who died in a motor accident on the 25th June, 1972.The action was brought against the defendant for himself and on behalf of J.C. Nzom. Patrick Nzom could not be served personally and was by order of court served by substituted service by publication in the Daily Times Newspaper of the 5th April, 1973. The writ of summons was issued on the 14th day of February, 1973 claiming from the Defendant, that is Patrick Nzom

“(a) Injunction restraining the defendant, his servant and/or agents from further trespass to no.39 Seriki Aro Avenue, Ikeja.

(b) A true and full account of all moneys that have been collected by the defendant, his servant and/or agents or otherwise from the said premises since January, 1970 and payment over to Plaintiff of the gross amount so collected.”

Patrick Nzom was the only defendant in the suit. Subsequently the beneficiaries of the late J.C. Nzom, (Margaret Nzom and J.C. Ikeokwu Obi expecting letters of Administration) on whose behalf Patrick Nzom was being sued appeared and applied to be joined as Co-Defendants. In a supporting affidavit (which remained uncontroverted) in an application to join as defendants it was averred that the Defendant, Patrick Nzom died in 1949 intestate. Accordingly Patrick Nzom, predeceased J.C.Nzom in respect of whose estate he was being sued. Desalu J. granted the application and Margaret Nzom and Cyprian Ikeokwu Obi, were joined as 2nd and 3rd Defendants respectively. The ‘new’ ‘defendants’ were not joined in their capacity as the administrators of the estate of the late J.C. Nzom, because, having not been issued with letters of administration they could not be so joined. They applied in their individual capacities as the eldest widow, and 1st Cousin of the late J.C. Nzom. It is interesting to observe that the averment in paragraph 6 of the affidavit in support of the application to join the defendants reads:

“6. I am informed by my said clients and I verily believed them that Patrick Nzom shown, as defendant died intestate in 1949, that is to say, before the institution of the above suit, and his estate has been administered under Ozubulu customary law of the Ibos.”

This averment which was not controverted appears not to have led both the learned Judge and the Plaintiffs on inquiry as to the truth whether the defendant was alive. Indeed it is this averment that has legitimately raised the whole question of the validity of the writ issued, and consequently all orders made by virtue of the writ of summons. It was after the order joining the defendants had been made that the application to strike out the writ of summons as invalid, null and void was made. The trial Judge dismissed the application and held inter alia

“(iii) Even if the case against the 1st Defendant fails and the institution of the action against him is null and void, it is my considered view that this fact, does not vitiate the writ of summons sufficient to declare it null and void in its entirety.

(iv) The writ of summons subsists against the Applicants in this matter.”

It would seem that the trial Judge was not satisfied that the issue of a writ of summons against a dead person was a nullity. In fact he went on to hold, curiously, that even if it was and the writ issued was a nullity as against 1st defendant, it was not sufficient to render the writ of summons a nullity as against the 2nd and 3rd Defendants who were joined after issue of the writ of summons by leave of court. Appellants, who were the applicants, were the 2nd and 3rd Defendants, appealed to the Court of Appeal. The appeal was dismissed. The first ground of appeal in the Court of Appeal is quite pertinent. It is as follows –

“1. The learned trial Judge erred in law when he held that a writ can by joining two living persons to the void writ and thereafter discontinuing against the dead person become valid ab initio when the law is that a writ which is null and void remains a nullity for all times and all proceedings remain a nullity for all times.”

It is clear for the relevant part of the judgment of the Court of Appeal that the court did not regard the writ of summons before it as a nullity. This was because although it held that Order 15 Rule 6A of the RSC of England was not applicable. It held that the writ of summons was validly amended by the trial court by leave to amend the writ and statement of claim granted by that court on 15/1/79. Appellants still dissatisfied have now come before this Court. There are two Grounds of appeal, challenging the validity of the writ of summons, and the joinder of the 2nd and 3rd Defendants to the 1st Defendant. It is also pertinent to observe that Respondent has not cross-appealed against the decision of the Court below that “Order 15 Rule 6A of the English Supreme Court Rules …. are clearly provisions in respect of Proceedings against Estates and does not apply to this case.” But counsel to the Respondents filed a Notice of Intention to contend that the judgment should be affirmed on grounds other than those relied on by the Court below.

There is no dispute and as counsel are ad idem as to the questions for determination in this appeal. They are

“(a) Is a writ of summons issued against a dead person null and void or merely defective?

(b) If a nullity,can such a writ be validated by subsequently joining thereto living persons.

(c) If a person is joined in a suit as administrator when he has not obtained letters of administration, is the joinder null and void?”

(d) Was it competent for the court after joining the appellants herein in the suit as administrators subsequently revoke the said Order so that they are joined personally?”

The crux of this appeal lies in the determination of the questions posed in (a) and (b) above. The questions in (c) and (d) assume the existence of a valid writ of summons, and does not present itself for examination until these questions are determined.

Mr. Anyamene S.A.N. for the Appellants has argued before us that the writ of summons issued on the 14th February, 1973 against Patrick Nzom, who had been declared to have died since 1949 is null and void. Counsel relied on the maxim actio personalis moritur cum persona and the English High Court decision in Dawson (Bradford) Ltd. & Ors. v. Dove & Anor (1971) 1 ALL ER. 554 at p. 558. He also cited and relied on Eyesan v. Sanusi (1984) 4 S.C. 115, Opebiyi v. Oshoboja & Anor (1976) 9 & 10 S. C. 195, Nigeria Nurses Association & Anor v. A.G of the Federation & 2 Ors (1981) 11-12, 11 S.C. Mr. Lardner S.A.N., counsel for the Respondent took the opposite view. He contended that the writ of summons was valid and that since there was no rule of practice governing suits against deceased persons resort must be had by virtue of section 12 of the High Court of Lagos Law Cap 52. Laws of Lagos State to the rules of practice of the High Court in England, Order 15 r 6A(3) of the RSC of England 1973 answers the question. It provides as follows:

“6A-(3) An action purporting to have commenced against a person shall be treated. if he was dead at its commencement, as having been commenced against, his estate …. whether or not a grant of probate or administration was made before its commencement.”

He therefore submitted that the fact of death before the commencement of an action does not necessarily render the writ null and void Counsel Submitted that the above rule was brought into force on the 1st January, 1971, and was therefore applicable to the suit which was filed on the 14th February, 1973. Mr Lardner pointed out that the rule applied in respect of defendants who have died before the commencement of action, and that such actions would be brought against the estate of such defendants whether or not grant of probate or letters of administration had been made. Counsel distinguished the suit from writs issued and suits brought in the name of a dead plaintiff which are regarded as nullities, and represented by Tetlow v. Orewa Ltd. (1902) 2 Ch. 24. He put the cases of Opebiyi v. Oshoboja (supra) relied upon by counsel for the appellant in the same category. He referred to Macfoy v. U.A.C. Ltd. (1961) 3 All ER 1167 and Craig v. Kanseen (1943) 1 KB 256 also relied upon by appellants as irrelevant because they all concern the distinction between acts which are void and those that are voidable. Mr. Lardner’s intention was that notwithstanding that the writ was issued against a dead man who was served by substituted service, the writ of summons and subsequent processes were valid.

The most important factor in this appeal is that it was accepted on both sides that the defendant Patrick Nzom died in 1949. It was also not disputed that the cause of action as endorsed on the writ of summons arose at about January, 1970 when J.C. Nzom started collecting rents from the occupants of No. 39 Seriki Aro Avenue Ikeja. The defendant was sued, as was stated in the statement of claim, for himself, and for and on behalf of the other children and/or descendants of J .C. Nzom. It is however, clear therefore that Patrick Nzom died ever before the cause of action accrued to the Plaintiff. It is also not in dispute that the action was against Patrick Nzom, and not the Estate of Patrick Nzom. The endorsement on the writ of summons clearly demonstrates the action was against the Estate of J.C. Nzom.

Mr. Anyamene relied entirely on the common law principle expressed in the maxim actio personalis moritur cum persona, and has relied on the decisions on that principle. The principle actio personalis moritur cum persona applies where the cause of action arose during the life of the parties, so that it dies with him where the cause of action has not been preserved by statute to survive the death of the person. Hence the principle presupposes the cause of action arising when both parties were alive. It does not apply where the cause of action arose after the death of the Plaintiff or defendant. In this case the Defendant who died more than twenty years before the cause of action arose cannot come within the common law principle. All the cases relied upon by Mr. Anyamene in his argument do not support his contention. In Eyesan v. Sanusi (1984) 4 S.C. 115, the defendant was actually defending the action against him when he died. His two children were substituted on his death to continue with his appeal against the judgment of the High Court. Also in Opebiyi v. Oshoboja (1976) 9 & 10 S.C. 195, where the action was against the defendants in a representative capacity, Plaintiffs did not know that the two persons representing the defendants had died. An order was made extending time within which to appeal and leave to appeal. But the defendants had died. An application was brought to substitute other defendants for the dead defendants. The Court held that since all the defendants were dead, no appeal was pending before the Court. Accordingly no application could be made to substitute the dead defendants. The case of Nigerian Nurses Association & anor. v. Attorney-General of the Federation & 2 Ors (supra) is different in that the question was one of the juristic personality of the Plaintiff to sue the Defendant. This was because at the time the action was brought the Plaintiff had ceased to be a legal person by virtue of the Trade Union (Amendment) Act 1978. Dawson (Bradford) Ltd. & ors v. Dove & anor (supra) is the closest to the appeal in hand on the facts. It is still distinguishable on the ground that the cause of action arose during the lifetime of the defendant in Dawson’s case, which is not the case in this appeal. It was in Dawson’s case held that where a writ of summons has been issued against a dead man there is no power under the rules of Court to amend the writ by substituting the executors in place of the deceased. Dawson’s case relied on an analogy from Tetlow v. Orela Ltd. (1920) 2 Ch. 24 where it was held that an action cannot be commenced in the name of a dead plaintiff. It was held a fortiori a claim cannot be made against a dead defendant. It should be especially noted that in this appeal it was not a claim made against the Estate of the Defendant.

Mr. Lardner’s strongest point lay in his reliance on the application of Order 15 Rule 6A(3) of the Rules of the Supreme Court of England already cited and reproduced in this judgment. For a clear understanding Order 15 Rule 6A (1) must be read together with Rule 6A(3)

“6A-(1) Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.”

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-(3) An action purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1) whether or not a grant of probate or administration was made before its commencement. ”

It is important to observe that the Rule will apply only where

(a) there was a cause of action against the defendant

(b) an action would have lain against a person before his death, i.e, the Plaintiff must have a cause of action.

(c) such cause of action must have arisen before the death of the defendant, to survive him.

(d) the action may be commenced after the death of the defendant.

In these cases an action can be brought under the new rules against the deceased as defendant whether probate or administration has been obtained. The rule effectively reversed the decision in Dawson (Bradford) Ltd. v. Dove (supra). The rule in Tetlow v. Orela Ltd. (supra) which states that no action can be brought in the name of a dead plaintiff is still good law. It seems to me that the fundamental reason for this rule is the generally accepted one that only juristic persons are capable of exercising legal rights and being subjected to legal duties. A human being of full age is such person and is a juristic person. Infants, lunatics so found are not juristic persons and can sue and defend actions by their next friend. A dead man is obviously not a juristic person. If he cannot bring an action, I do not see how a claim can be made against him in person, and not his estate. In Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant Ltd. (1961) All NLR, 116 it was held that the General Manager, G. B. Ollivant Ltd. not being a juristic person could not be made a defendant and a party to the action. The General Manager was accordingly struck out. See also Martins v. Federal Administrator-General (1963) L.L.R. 65.

Mr. Lardner’s contention that Order 15 Rule 6A covers this situation is not convincing. This is because Patrick Nzom is not a person against who an action by the Plaintiff would have lain, and since Patrick Nzom had died long before the situation which gave rise to the action against him arose, it is not only an extraordinary reasoning but ridiculous to contend that the action against J.C. Nzom could be brought against Patrick Nzom.

There is no doubt in my mind that the writ issued on 10/2/73 against Patrick Nzom who died more than twenty years earlier, in 1949, was issued against a dead person, who is not a juristic person and is accordingly null and void. Again since no such person existed it cannot be valid as representing the family of J.C. Nzom, deceased. It is also in that connection null and void.

The next question is whether a writ of summons which is null and void can be amended, and whether the 2nd and 3rd defendants can be made parties to it. It is now well settled that where an act is void, it is void and nothing can be added to it. It is expressed in the Latin ex nihilo nihil fit. Hence if the writ of summons against a non-juristic person is void, it admits of no additions or accretion of other persons. As Denning L.J. expressed it commenting on nullity succinctly in U.A.C. Ltd. v. Macfoy (1961) 3 ALL E.R at p.1172.

“If an act is void then it is in law a nullity. It is not only bad, but incurably bad … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

So it is in this case of the addition of the two defendants to a void writ of summons. Accordingly the order of the trial Judge joining 2nd and 3rd Defendants to a purported action founded on a void writ of summons is also void.

For the above reasons I hold that the purported writ of summons in this case is null and void. Similarly void is the joinder of the 2nd and 3rd Defendants to the purported action. I therefore will allow this appeal, and set aside the judgment of the Court below as well as the order of the trial Judge.

There will be costs to the Appellants in this court assessed at N300 and N150 in the court of first instance.

KAWU, J.S.C.: I have had the advantage of reading in draft the judgment of my learned brother, Oputa, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and conclusions, and it is because of those reasons that I too would, and hereby allow the appeal. I adopt all the orders made in the said judgment inclusive of the order as to costs.

Appeal Allowed.

 

Appearances

 

A. N Anyaemene, S.A.N.(with him Mrs. Izuora) For the Appellants

H.A Lardner, S.A.N(with him R.O. Dawodu, O. Ajiboye) For the Respondents