Substitution Of Deceased Party- The Recent Decision Of The Court Of Appeal In Chief Emmanuel Nnanta Chinda V. Dr. Princewill Chike & 4 Ors

TheNigeriaLawyer Editorial

The recent Court of Appeal ruling in Appeal No: CA/PH/270/2010- CHIEF EMMANUEL NNANTA CHINDA V. DR. PRINCEWILL CHIKE & 4 ORS delivered on the 16^th of February 2022, addresses the settled issue of substitution of a deceased party to a litigation, in the context of the unique facts presented by appeal.

FACTS

Chief Emmanuel Nnanta Chinda (now the deceased Appellant) had brought the appeal before the court in representative capacity for himself and as representing the Chokaa family Eligbam, Remueme, Port Harcourt. Unfortunately, whilst the appeal was pending the Appellant died. Consequently, one Mr. Godknows Amadi (child of the Appellant) brought an application seeking the striking out the name of the Appellant and substituting the Applicant as Appellant in the appeal. The grounds for Mr. Amadi’s application were that (a) the original Appellant is now deceased and cannot remain on record as a named party to the appeal (b) the appeal cannot be sustained in the absence of a named party, in this instance, Applicant who has now assumed position as the Head of the Chokaa family.

The 1^st -4^th Respondents filed their counter-affidavit in opposition to the application. They argued that the appeal was filed in representative capacity on behalf of the Chokaa family, and its sustenance was dependent on the decision of the family. The Respondents therefore argued that they, as members of the Chokaa family, were “not happy” with the pendency of the case and wanted the matter to end. Hence, the Applicant’s application was in conflict with the interest of the Chokaa “family members” and the family did not appoint the Applicant nor authorize the applicant to represent them in the appeal. They therefore challenged his right to represent the family. The 5^th Respondent also aligned with the submissions of the 1^st – 4^th Respondents.

RULING

The Court of Appeal noted the guiding considerations when a party to a litigation noting that the issues thrown up would be:

1. Whether the party is dead?
2. Whether the dispute before the court is one which survives the deceased party?

• Whether there is anyone or other entity interested in succeeding or entitled to succeed the deceased party to the dispute in court.

1. Whether there are good grounds for the court to allow the substitution of the prospective party in the place of the deceased party.

In resolving the above questions, the Court considered Order 15 Rules 1 and 2 of the Court of Appeal Rules 2021 which provides explicitly, as follows:

1. It shall be the duty of Counsel representing a party to an appeal to give immediate notice of the death of that party to the Registrar of the lower court or to the Registrar of the Court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.
2. Where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 11, be made in that behalf to the lower court or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.”

The Court noted that the Applicant counsel had duly given notice of the demise of the Appellant to Registry and the fact of the demise was not disputed by the Respondents.

Furthermore, the court agreed that the dispute being a disagreement over ownership of or entitlement to land was one which clearly survived the deceased, erstwhile Appellant in death. Relying on the decision in RE: APEH & ORS [2017] LPELR-42035(SC) the Court viewed that

“If all the named parties in a representative action die, the action, provided it is still maintainable, subsists on behalf of and/or against those they represent and who have not been mentioned in the proceedings. But such action may not be prosecuted or continued until a living person(s) has been substituted for the named deceased party to carry on the representative action both on trial and also when the matter is on appeal. See: ATTAH & ORS V. NNACHO & ORS (1965) NMLR, 28.  The Court therefore held that the appeal is capable of being sustained and prosecuted, being one arising from a land dispute and having been brought in a representative capacity.

On the question of whether there is anyone or other entity interested in succeeding or entitled to succeed the deceased party to the dispute in court, the court viewed that Order 15 Rule 2 of the Court of Appeal Rules, 2021 creates an “either – or” situation. That is a two-way prescription for entitlement or request to be substituted as a party to proceedings in the Court of appeal arising from death of an erstwhile patty’. The types of persons or entities who may apply to be substituted are, either:

1. any existing party to the appeal; or,
2. by any person who wishes to be added or substituted.

The Court further noted that existing parties, in that regard, would refer to patties who were being represented by the deceased appellant, as in this case, who are not named, as parties in the appeal. It would be ridiculous for a person, already named in an appeal to, at the same time, request for substitution. That is not what is intended. In this appeal, the applicant is said (by the deponent to the affidavit in have taken over the mantle of headship of the Chokaa family, which implies that he is a member of that family, who was not named in the appeal, though represented by the deceased appellant in this appeal, before now. In that wise, the Applicant is entitled to be joined to continue the prosecution of the appeal.

The Court further noted that the Applicant as the family head did not need the authority of any other member of his family to take any action regarding the prosecution of the appeal.  According to the Court:

In another respect, with the applicant as the head of family, he does not need the authority of any other member of his family to take any action regarding the prosecution of the appeal. He is, now, the head of the family, which attracts such consequences. The head of a family is not a figurehead. He is there for a purpose and his decision once made, must be respected but can be challenged and overturned through a popular vote at another meeting, or by an order of a court of competent jurisdiction. See Vincent v. Vincent [2008] 11 NWLR (Pt. 1097) 35 at 46, per Monica Dongbam-Mensem, JCA. (as he then was), The deponent to the counter-affidavit did not mention the name of any other person who is the head of the Chokaa family, The deponent to the counter-affidavit did not depose to that affidavit on behalf of and with the authority of the Chokaa family. Thus, the deponent to the counter-affidavit (Mrs. Oroma Pleasant Chike) who claims to have deposed to that affidavit in a dual capacity – as legal practitioner handling the matter and as a member of the Chokaa family – was merely expressing her personal views of the facts, which does not carry any evidential weight in these proceedings. There is no controversy activated by the puerile denial of the headship of the Chokaa family by the applicant, in the counter-affidavit. If he is not the head of the family, then who is? The deponent did not say.

The Court, therefore, concluded that both as a member of the family and as its head, the Applicant justified his application for substitution in the place of the deceased.  The Court further noted that Order 15 Rule 2 of the Court of Appeal Rules gives the Court some discretion and flexibility in identifying appropriate persons with the prosecution of those matters, and viewed that the determination of such issues should be simple and not expected to be contentious.

IN CONCLUSION

The Court held that the Applicant has proved or shown himself as a fit and proper person to be substituted in place of the deceased erstwhile appellant and there was no merit in the opposition mounted by the